Lawyer Issue - Brexit Handbook

SEPTEMBER 2016 

LEAVING THE EU – 

WHAT THIS MEANS 

FOR YOU AND 

YOUR BUSINESS 

Now that the dust is 

settling on the UK’s 

decision to leave the EU, 

clients are asking what 

this means for them. 

INTELLECTUAL 

PROPERTY AND THE 

BREXIT DECISION 

Many questions are being 

raised as to what this 

means for clients and 

the protection of their 

valuable IP rights. 

THE REFERENDUM – 

ONE MONTH ON 

Few could have 

anticipated the positive 

tone to markets and 

surprisingly buoyant 

reaction to the 

Brexit result. 

BREXIT

Contents 

Contact 

www.lawyerissue.com 

Brexit – What Does It Mean For You? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 

International Arbitration an London Post Brexit: Business as Usual . . . . . 7 

Leaving the EU – what this means for you and your business . . . . . . . . . 11 

The Referendum – One Month On . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 

Intellectual Property and the Brexit Decision . . . . . . . . . . . . . . . . . . . . . . 20 

Brexit and its affect on Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . 23 

Jexit – the constitutional consequences for Jersey of Brexit . . . . . . . . . . 30 

Implications of the United Kingdom Leaving the 

European Union on Climate Change and Energy Law . . . . . . . . . . . . . . . 34 

Brexit and UK Consumer Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Brexit 


Brexit – What Does It Mean For You? 

Ian Kelly 

As we are all aware, the UK electorate has voted in the 

recent Referendum to leave the European Union (EU). 

What does this mean? What implications will it have 

for you, your investors and your business? It is early days 

in the process but we set out below what is currently 

happening, the processes involved and how this is likely to 

affect fund managers in the coming months and years. 

What has happened in 

the UK? 

There was a view by many in the UK, that 

the EU regulation, with which it had to 

conform, was too overbearing and too 

restrictive. In addition, the UK population 

has seen fairly high population increases 

in the last 10 years, primarily as a result 

of immigration and primarily as a result of 

the EU’s policy of free movement of labour. 

As a consequence there was bad feeling 

towards the EU from the voting population 

which culminated in the politicians agreeing 

to a public referendum. The major political 

parties supported “Remain” and tried 

to persuade the voting public to vote 

accordingly. Other smaller parties, and 

some politicians from the major parties 

who “switched sides” were in favour of 

“Out”. The final outcome was a 51.9%/48.1% 

vote in favour of leaving the EU. 

However, this is merely a recommendation 

from the people to the politicians – it is not 

binding but the politicians have said they 

will follow “the peoples” recommendation. 

Parliament needs to debate and then 

formerly serve a notice under “Article 50” 

of the legal agreement between the EU 

countries. Until the UK serves notice, the UK 

remains part of the EU and nothing changes 

either in legislation, taxes or the like. 

However the situation has been made 

more complex by the resignation of the 

English Prime Minister, David Cameron. 

Whilst some in the EU are pressing for the 

UK to serve Article 50 notice as quickly as 

possible, without a Prime Minister, this is 

physically impossible. A new Prime Minister 

has now been selected, although some are 

speculating that the Article 50 notice will 

not be given until October or November 

and some are suggesting that it may not be 

until 2017. 

The reality is that many in the EU did 

not want the UK to leave. The UK is the 

second largest economy in the EU and an 

important trading partner for many e.g. the 

UK is the largest export market for German 

car manufacturers. So despite the rhetoric 

in the EU parliament, many are keen to do a 

“sensible” deal with the UK. 

How will this affect UK 

domiciled Private Equity 

and Real Estate fund 

managers? 

The reality is that: 

1. Nothing is changing in the immediate 

future 

2. Nothing further will change in the UK 

for at least 2 years after the serving of 

Article 50, whenever that may be 

As a consequence there is no need to make 

any immediate changes to fund structures. 

However there is no doubt that things will 

change in the future. The key questions for 

managers to ask themselves are: 

1. Do I really need to be in the EU or not? 

2. What are the advantages/disadvantages? 

3. What are the implications? 

These are questions to think about in 

the future – and there may be a range of 

answers. 

The UK already has a good range of 

fund structures – and these are likely 

to be enhanced. In addition, the UK will 

undoubtedly be looking to ensure AIFMD 

passporting for its products even as a third 

party country. Some are talking about dual 

streamed products containing both EU and 

non-EU fund structures to accommodate 

different sorts of investors (a model already 

used by some). The reality is that it’s too 

early to determine which are the best routes 

to take. But without doubt Brexit needs to be 

on the agenda – and be actively considered 

by managers on an ongoing basis. 

What about non-EU 

managers with UK entities 

regulated by the FCA? 

Increasingly, non-EU managers have been 

setting up UK entities, regulated by the 

FCA, to support portfolio management and 

distribution activities both in the UK and 

throughout Europe. Again the reality of 

the Brexit Referendum is that (i) nothing 

will change in the immediate future and 

(ii) nothing further will happen until the 

Article 50 notice has been served and the 

transition period of at least two years has 

been completed. 

This means that in the shorter term, 

managers can still continue to manage 

4 | LawyerIssue 5



assets in the UK and Europe from their 

operations in the UK and can continue 

to market funds across Europe, whether 

they are via passporting or local private 

placement arrangements. So the immediate 

message is that “nothing changes” and it’s 

“business as usual”. 

of third countries any day now and that 

could open Europe up to many fund 

managers. It could of course also close 

down the Private Placement Regimes used 

by many – Germany is already saying it will 

close its PPR once passporting is in place – 

but that was before Brexit!! 

International Arbitration an London 

Post Brexit: Business as Usual 

Going forward, there is no doubt that the 

UK will gain access to the EU financial 

markets. The EU want to invest with 

UK domiciled fund managers and have 

access to the products they have on offer. 

The world is increasingly globalised and 

investors need global diversification. 

However, how this is achieved has yet to be 

decided. Once again the message has to be 

“no panic now but watch this space”. 

And non-EU managers 

marketing their funds into 

the UK and elsewhere into 

Europe? 

Again – nothing has changed in Europe – 

although things may be changing in the 

very near future – but not because of Brexit. 

ESMA is due to report on the “Passporting” 

Ian Kelly 

In many ways ESMA’s announcement will 

be more important than Brexit. ESMA has 

already indicated that it would be in support 

of extending a third country passport 

to Guernsey, Jersey and Switzerland but 

rather than give piecemeal approvals and 

potentially give a competitive advantage 

to certain domiciles, the Commission then 

asked ESMA to give further consideration 

to Hong Kong, Singapore and the US, with 

a second list of Australia, Canada, Japan, 

the Cayman Islands, the Isle of Man and 

Bermuda. ESMA’s announcement, due 

any day, will have a major effect on how 

funds market themselves into Europe going 

forward – and Brexit will be less important. 

Sophie Nappert 1 Unless and until the United Kingdom (UK) formally leaves 

the European Union (EU), the Brexit vote – which has 

political and historical significance, but is not legally binding 

on government 2 - will have little impact on London’s status 

as a centre for international arbitration. 

Partner Managing at EMD Partner Advocates 

Augentius Fund Administration LLP 

T: +356 +44 (0)20 22030000 7397 5465 

Email: ian@augentius.com 

Email: tellul@emd.com.mt 

Tonio Ian Kelly is a was Partner appointed at EMD Managing Advocates Partner since 2003 of Augentius and also Fund holds Administration directorships in LLP various in 2011, companies after achieving within partner the EMD in 

group. 2008. Ian He was specialises then appointed corporate CEO law, in 2014. gaming His law, operational trusts and role foundations, is Global Head tax law of Client and employment Delivery and law. he has overall 

responsibility for all client related activities including onshore and offshore client servicing. His previous roles within 

Prior to joining EMD, Tonio provided in house Counsel for one of the largest consultant firms in Malta and was a 

Augentius have been Chief Operating Officer (Europe) and Client Services Director. 

member of the Malta-EU Steering Action Committee (MEUSAC) Core Group. He has also been Visiting Lecturer and 

Examiner Throughout in his company career and in the commercial Fund Administration law the University industry, Ian of Malta has been actively involved with numerous fund types, 

structures and jurisdictions through the complete fund life-cycle, from the inception and launch phase, ongoing 

administration through to the final closure of the fund. 

The withdrawal process itself is contemplated 

by Article 50 of the Treaty on the Functioning 

of the European Union (TFEU). Untested to 

date, it is a once-and-for-all decision and a 

process that falls to be decided pursuant to 

the UK’s “own constitutional requirements”. 3 

1 International Arbitrator, 3 Verulam Buildings, Gray’s 

Inn, London. E snappert@3vb.com. 

2 The European Union Referendum Act 2015 is silent 

on the issue. 

3 “1 Any Member State may decide to withdraw from 

the Union in accordance with its own constitutional 

requirements. 

2. A Member State which decides to withdraw shall 

notify the European Council of its intention. In the light 

of the guidelines provided by the European Council, 

the Union shall negotiate and conclude an agreement 

with that State, setting out the arrangements for its 

withdrawal, taking account of the framework for its 

future relationship with the Union. That agreement 

shall be negotiated in accordance with Article 218(3) of 

the Treaty on the Functioning of the European Union. 

It shall be concluded on behalf of the Union by the 

Council, acting by a qualified majority, after obtaining 

the consent of the European Parliament. 

3. The Treaties shall cease to apply to the State in 

question from the date of entry into force of the 

withdrawal agreement or, failing that, two years after 

the notification referred to in paragraph 2, unless the 

European Council, in agreement with the Member State 

concerned, unanimously decides to extend this period.” 




Constitutional law experts have advised that, 

one stares at a legal landscape harking 

Recent public pronouncements from Lord 

1996 in favouring the perceived advantages 

in order for the EU referendum result to be 

back several decades. Without the Rome 

Thomas, the Lord Chief Justice of England 

for arbitration as a means of dispute 

given effect, an act of the UK Parliament is 

I Regulation on the law applicable to 

and Wales, may also cause one to wonder 

resolution in London over the development 

required to allow Article 50 to be triggered 

contractual obligations (593/2008), choice 

whether the UK Supreme Court, the country’s 

of the common law; the time is right to look 

and the UK formally to leave the EU.4 This 

of law issues will revert to common law 

highest judicial authority, prefers to see 

again at the balance. There is also a need 

entails that a Bill should be presented for 

rules. The non-application of the Brussels 

commercial arbitration heading back to an 

to examine whether other markets would 

debate before Parliament, and approved 

Regulation (recast) (1215/2012) will not 

era pre-dating the Arbitration Act 1996. 

be prepared to follow the financial markets, 

in the same form by both the House of 

Commons and the House of Lords. 

This view rests on the basis that triggering 

Article 50 TFEU without an act of Parliament 

(for example, as has been mooted in the 

press, by a declaration of the Prime Minister) 

would contravene the terms of the European 

Communities Act 1972, the statute providing 

for the UK’s membership of the EU and for 

the EU Treaties to have effect in domestic 

law, and thereby be open to challenge by 

way of judicial review. 

Consequently, any formal departure of 

the UK from the EU is not realistically 

contemplated for the immediate future. 

affect arbitration, which remains outside its 

scope. However it will mean no reciprocal 

enforcement of judgments in the EU legal 

space and no deference to the court first 

seised, therefore possibly encouraging 

the strategic use of the “jurisdiction race”, 

a proliferation of arbitration-related court 

proceedings - and the potential resurrection 

of the anti-suit injunction. The disappearance 

of the EU Insolvency regime will not assist 

with the considerable challenges presented 

to international arbitration by a party subject 

to pending insolvency proceedings. 5 

Withdrawal from the EU may also toll the end 

of the UK in its current incarnation. Scotland 

and Northern Ireland have voted massively 

In a Lecture held by the Trustees of 

the British and Irish Legal Information 

Institute (BAILII) on 9 March 2016, entitled 

“Developing commercial law through the 

courts: rebalancing the relationship between 

the courts and arbitration”, 7 Lord Thomas 

forcefully advocated in favour of more 

robust court intervention in arbitration. 

The Arbitration Act 1996 is premised on 

the tenets that “the parties should be free 

to agree how their disputes are resolved, 

subject only to such safeguards as are 

necessary in the public interest” (s. 1(b)) and 

“in matters governed by this Part the court 

should not intervene except as provided by 

this Part” (s.1(c)). 

to waive arbitration in cases where there 

were significant points of general interest 

and to appreciate that not only would their 

own dispute, in the right case involving legal 

issues, be better determined in a court but, 

more importantly, the wider interests of their 

industry and of the common law in general 

would be much better served by more issues 

being resolved in court and the law thus 

developed and clarified.” 

Reactions to Lord Thomas’ speech have 

roundly condemned his views as “wholly 

retrograde” and out of step with commercial 

reality. Commentators, including former 

judges, have pointed out that international 

disputing parties should not “be obliged 

The immediate future is marked by a 

falling sterling, an unsettled economy and 

uncertain financial markets. These woes may 

indirectly benefit international arbitration: 

London becomes a cheaper, and thus more 

attractive, venue for hearings, and we may 

see an increase in arbitral disputes as parties 

seek to invoke Brexit to trigger “material 

adverse change” and similar clauses in their 

contractual agreements. As the Brexit dust 

settles, the Arbitration Act 1996 remains 

unaffected, the UK is a party to the New York 

Convention 1958 in its own right, English law 

retains its desirability as the governing law 

of choice in commercial agreements, and 

London’s sophisticated infrastructure for 

handling international disputes and its legal 

talent and know-how stay firmly in place. 

Looking into the future at the hypothesis 

of a formal UK withdrawal from the EU, 

4 See notably N Barber, T Hickman, J King, “Pulling 

the Article 50 ‘Trigger’: Parliament’s Indispensable 

Role”, U.K. Const. L. Blog (27 June 2016) at https:// 

ukconstitutionallaw.org/2016/06/27/nick-barber-tomhickman-and-jeff-king-pulling-the-article-50-triggerparliaments-indispensable-role/ 

in favour of remaining in the EU and they 

may not wish to remain part of the UK in the 

event of withdrawal. 6 

The prospect of a dismembered Britain (no 

longer the UK) out of the EU is arguably 

more threatening to international arbitration 

in London than is the Brexit vote itself. It 

is an open question whether Britain in its 

new incarnation could readily take up the 

place of the UK as a party to the New York 

Convention, which counts over 150 state 

parties and is widely recognised as the most 

important selling point of international 

arbitration. 

5 The conflicting decisions of the English and Swiss 

courts on whether an arbitration should be stayed 

pending the outcome of insolvency proceedings 

affecting one party in the case between Elektrim SA and 

Vivendi (Syska v Vivendi SA [2008] EWHC 2155 (Comm) 

and on appeal [2009] EWCA Civ 677; Swiss Supreme 

Court, Decision 4A_428/2008 of 31 March 2009) 

illustrate the important challenges facing international 

arbitration in this context. 

6 “Where was the EU referendum won and lost? 

Northern Ireland, Scotland and London only areas 

not to vote for Brexit”, The Telegraph, 27 June 2016 at 

http://www.telegraph.co.uk/news/2016/06/24/what-canwe-learn-from-the-eu-referendum-results/ 

Lord Thomas stressed that, in taking place 

behind closed doors, arbitration “reduces 

the potential for the courts to develop and 

explain the law. This consequence provides 

fertile ground for transforming the common 

law from a living instrument into, as Lord 

Toulson put it in a different context, “an 

ossuary”.” 8 

He concluded, “My view is clear. In retrospect 

the UK went too far in 1979 and again in 

7 http://www.bailii.org/bailii/lecture/04.pdf 

8 “The effect of the diminishing number of appeals 

compounds the problem that arises from the diversion 

of more claims from the courts to arbitration. It reduces 

the potential for the courts to develop and explain 

the law. This consequence provides fertile ground for 

transforming the common law from a living instrument 

into, as Lord Toulson put it in a different context, “an 

ossuary”. Here lies the irony. As I have explained reform 

was effected to promote the use of London as a centre 

for dispute resolution largely based on contracts based 

on the common law as developed in the Commercial 

Courts of London. However, the consequence has been 

the undermining of the means through which much 

of the common law’s strength – its “excellence” was 

developed – a danger not merely to those engaged in 

dispute resolution in London, but more importantly to 

the development of the common law as the framework 

to underpin the international markets, trade and 

commerce. 

to finance the development of English 

commercial law”. 9 

Views such as those expressed by Lord 

Thomas count amongst the very reasons why 

arbitration is preferred to the courts in crossborder 

commercial agreements. 

Quite apart from this major issue, there are other 

issues which arise from the resolution of disputes firmly 

behind closed doors - retarding public understanding 

of the law, and public debate over its application. A 

series of decisions in the courts may expose issues that 

call for Parliamentary scrutiny and legislative revision. 

A series of similar decisions in arbitral proceedings will 

not do so, and those issues may then carry on being 

taken account of in future arbitrations. As has been put: 

Arbitration confidentiality perpetuates public ignorance 

of continuing hazards, systemic problems, or public 

needs . . .28 Such lack of openness equally denudes 

the ability of individuals, and lawyers apart from the few 

who are instructed in arbitrations, to access the law, to 

understand how it has been interpreted and applied. It 

reduces the degree of certainty in the law that comes 

through the provision of authoritative decisions of 

the court. As such it reduces individuals’ ability to fully 

understand their rights and obligations, and to properly 

plan their affairs accordingly.” 

9 England: Former Supreme Court Justice calls Lord 

Thomas’ arbitration proposals ‘wholly retrograde’: http:// 

www.scottishlegal.com/2016/04/28/england-formersupreme-court-justice-calls-lord-thomas-arbitrationproposals-wholly-retrograde/ 




Looking at the likely long lead-in time to a 

UK exit that is not a foregone conclusion, 

and in light of “the not inconsiderable, and 

measurable, economic benefit that befalls 

arbitration-friendly jurisdictions”, 10 estimated 

in 2009 at some €4 billion for the EU by the 

European Commission, 11 it makes sense to 

take advantage of that time to consolidate 

London’s position as a worldwide arbitration 

hub and reassure users that it is business as 

usual. Taking a long hard look at the criticisms 

voiced by users – time, costs, diversity deficit, 

the perceived reluctance of tribunals to 

engage in proactive procedural handling 12 

- and addressing them in a practical and 

commercial manner would make for a good 

starting point. 

London has its own arbitration image. It has 

withstood the test of time and will withstand 

a post Brexit landscape. London’s features are 

distinctive and different from the hallmarks 

of Paris, Geneva or Stockholm. They include 

the adaptability and commercial-mindedness 

of the common law, an enlightened judiciary, 

a critical mass of legal and forensic expertise, 

and world-class facilities. London remains 

open for business, with or without the EU. 

Leaving the EU – what this means for 

you and your business 

Bruce Potter 

10 S Nappert, Escaping From Freedom? The Dilemma of 

an Improved ISDS Mechanism, The 2015 Inaugural EFILA 

Annual Lecture, 26 November 2016, at http://efila.org/ 

wp-content/uploads/2015/11/Annual_lecture_Sophie_ 

Nappert_full_text.pdf 

11 Commission Staff Working Paper, Impact 

Assessment, Accompanying document to the Proposal 

for a Regulation of the European Parliament and of 

the Council on jurisdiction and the recognition and 

enforcement of judgments in civil and commercial 

matters, COM (2010) 748, SEC (2010) 1548, 14 

December 2010, at page 35. 

12 2015 International Arbitration Survey: Improvements 

and Innovations in international Arbitration (QMUL – White 

Partner Arbitrator at EMD 3 Verulam Advocates Buildings, Gray’s Inn, London 

Email: T: +356 snappert@3vb.com 

22030000 


& Case): “”Cost” is seen as arbitration’s worst feature, 

followed by “lack of effective sanctions during the arbitral 

process”, “lack of insight into arbitrators’ efficiency” and 

“lack of speed”. The majority of respondents do not 

favour an appeal mechanism on the merits in either 

commercial or investment treaty arbitration. A growing 

concern in international arbitration is a perceived 

reluctance by tribunals to act decisively in certain 

situations for fear of the award being challenged on the 

basis of a party not having had the chance to present 

its case fully (“due process paranoia”)”. See http://www. 

arbitration.qmul.ac.uk/research/2015/. 

Tonio Sophie is Nappert a Partner is at a dual-qualified EMD Advocates lawyer since in 2003 Canada and also and holds in the directorships UK. She is an in arbitrator various companies in independent within practice, the EMD based in 

group. Gray’s Inn, He specialises London, specialising in corporate in international law, gaming law, disputes, trusts notably and foundations, in energy, tax infrastructure, law and employment natural resources law. and cross-border 

investment. Before becoming a full-time arbitrator, she was Head of International Arbitration at a global law firm. 


member Ms Nappert of the is trained Malta-EU and Steering has practised Action Committee in both civil (MEUSAC) law and common Core Group. law He jurisdictions. has also been She Visiting the peer-nominated Lecturer and Moderator 

Examiner of OGEMID, in the company online and discussion commercial forum law on at current the University issues of of international Malta investment law, economic law and arbitration. She is 

ranked in Global Arbitration Review’s Top 30 List of Female Arbitrators Worldwide and is commended as a “leading light” in the 

field by Who’s Who Legal. 

Ms Nappert delivered the 2015 inaugural Annual Lecture of EFILA, the European Federation of Investment Law and Arbitration, 

on the topic of Escaping from Freedom? The Dilemma of an Improved ISDS Mechanism, which won the Award for Speech of the 

Year at the Global Arbitration Review Awards 2016. 

She is the author of a Commentary on the 2010 UNCITRAL Arbitration Rules: A Practitioner’s Guide (Juris, 2012). She is a 

guest lecturer at Columbia Law School, Harvard Law School and McGill University Faculty of Law. She created the Nappert Prize 

in International Arbitration, open to young scholars and practitioners worldwide, and administered under the auspices 

of McGill University. 

Sophie Nappert 

Now that the dust is settling on the UK’s decision to 

leave the EU, our clients are asking what this means for 

them. We are the first member state ever to leave the 

European Union and as such, the result has ignited much 

uncertainty and debate about what lies ahead. 

Change always brings opportunities, as 

well as challenges, and we are focused on 

helping our clients understand how these 

changes can benefit their business during 

the period of transition ahead. 

A recent survey we commissioned suggests 

that only 20% of businesses had set in place 

a continuity plan for the leave vote. In the 

public sector, there is concern about what 

will happen to staffing arrangements as well 

as EU-funded collaboration projects. We 

understand that there is much uncertainty 

at present, but we will continue to support 

and provide innovative solutions to help 

our clients invest and grow. 

Of course, it’s not only businesses that are 

affected. Exit from the EU will likely have 

a knock-on effect on a range of private 

and family law matters which are currently 

governed by a system which in many areas 

combines both EU and domestic legislation 

into an integrated European framework. 

Whilst it is not clear what the exit will look 

like or how we will take forward the laws 

that the UK has adopted over the last 

40 years, we do know that there will be 




opportunities coming out of these changes 

and we will be supporting our clients in 

understanding how these can be used to 

their advantage. 

In this article, I explore some of our key 

sectors and what the implications may be 

for them of leaving the EU. 

Real Estate 

Real Estate markets, whether commercial 

or residential, always prefer certainty. The 

last few months have led to a slowdown 

in transactions while people awaited the 

outcome of the Referendum. In some 

recent cases, transactions have been 

entered into with options to determine 

depending on the result of the vote, and 

those agreements may now be determined. 

Now that we know that the Leave vote 

has won, we expect to see the Real Estate 

markets to pick up rapidly. Banks are still 

in the market to lend to the right product, 

and there is a significant amount of 

private equity cash available for property 

transactions. However, there may be some 

weakness in areas involving prime offices if 

companies start relocating their HQs. 

law of the jurisdiction of their nationality to 

govern the whole of their estate (including 

foreign property located in another EU 

state). Post-Brexit the UK is clearly a ‘third 

state’ under the Regulation, like the USA 

This means less flexibility in the choice of 

succession rules and potentially more tax, 

although double taxation treaties should 

continue to apply. Our EU neighbours 

mainly favour a succession system which 

includes forced heirship, and we could 

find ourselves in a position where there is 

less choice on the ultimate distribution of 

foreign immovable assets. 

Employment 

Employment law is unlikely to see too 

many dramatic changes as the UK leaves 

the EU. Despite the claims that businesses 

are stifled by EU labour laws, the fact is 

that many Employment law rights either 

originated in the UK or have become deeply 

embedded in UK law as the UK’s attitudes to 

social issues have evolved. A move to scale 

back all but the most minor Employment 

law rights would, in all likelihood, be 

politically unpopular. 

As well as the immediate impact on markets 

and the business outlook for employers, the 

referendum result will also throw up longerterm 

issues, such as the migration of staff 

in and out of the UK and a potential re-run 

of the Scottish referendum. Unfortunately, 

the lack of a clear indication as to what 

any exit deal would look like makes it very 

difficult for businesses to plan for it in any 

practical way at the present time. 

Banking and Finance 

The financial markets and the banking 

sector hate uncertainty. The government 

needs to move quickly to reassure the 

business community by setting out a clear 

plan to replace existing trade and other 

arrangements with the EU and the world as 

a whole. 

Particularly in the short term, the role of 

the Bank of England will be key. At a time 

when the monetary tools available to them 

are already limited, they need to find a way 

to protect the pound and keep interest 

rates at a level that enables companies to 

continue to borrow and invest in what will 

hopefully be a prosperous economic future 

and funding. If the EMA must now relocate, 

the long-term impact on trials revenue 

and participation will depend on the 

strength and depth of relationships already 

established. 

European systems have influenced several 

of the new models of care programmes in 

the NHS. Many independent healthcare 

operators have pan- European activities. 

Uncertainty in the short term about 

implications of an exit could impact 

collaboration and appetite for financial risk 

in organisations supporting the NHS. 

Education 

It is impossible to ignore the fact that 

the higher education sector, which is 

presently reliant on the EU as a reliable 

source of funding, in the form of students, 

research grants, and capital finance, faces 

a challenging future, given the uncertain 

nature of the relationship between the 

UK and the EU. In the next five years, we 

may well see a more innovative approach 

to funding and collaboration required, 

with institutions looking further afield for 

support, or collaborations with the private 

Private Law 

Since 17 August 2015, we have been 

coming to terms with new EU legislation 

for succession (known as Brussels IV). 

Paradoxically, this system is intended to 

unify the succession laws which apply to 

an estate, and now, we have voted to leave 

just at the point when the member states 

choose to change things for good! 

That said, the UK opted out of the full 

implementation of the legislation, along 

with Ireland and Denmark, so the impact 

strangely has been simplified as there was 

some uncertainty as to how the legislation 

applied to the UK. The intention is that EU 

citizens are able to make an election of the 

In addition, potential changes could be 

severely limited by the subsequent trade 

deal negotiated – other non-EU countries 

such as Norway and Switzerland have not 

in practice been able to free themselves of 

many EU labour laws. In several areas, such 

as data protection, we are likely to produce 

laws that mirror EU legislation to ensure we 

can conduct business effectively. 

Such changes as there are could be seen 

in the areas of collective consultation 

rights, clarification on Working Time rights 

such as paid holiday and a repeal of the 

48-hour limit, tweaks to the Transfer of 

Undertakings (Protection of Employment) 

Regulations 2006, and potentially more 

significant changes to/removal of the 

Agency Workers Regulations 2010. 

for the UK. 

Healthcare 

The Referendum campaign highlighted 

a fundamental lack of objective data 

regarding the impact of EU membership on 

our healthcare system, and therefore the 

effects of an exit. However, staffing is likely 

to be impacted as the NHS, and social care 

are reliant on overseas migrants to help 

alleviate intense staffing pressure. 

The London location of the EU Medicines 

Agency has been cited as a positive factor in 

the NHS’s successful positioning of its R&D 

capabilities, attracting overseas investment 

sector. 

Intellectual Property 

For the moment it is business as usual and 

trade mark and design owners should not 

panic – European Union Trade Marks and 

Registered Community Designs remain 

valid in the UK, and there is no immediate 

loss of IP protection. 

Once the UK formally gives notice to exit, 

the EU negotiations will begin on the status 

of EU marks in the UK and whether any 

transitional provisions will be required 

to grandfather across EU trade mark and 

registered design rights into the UK. 




Planning 

There maybe harmful consequences for 

major infrastructure projects as much of 

the funding comes from Europe including 

Crossrail and HS2. How such projects will 

be funded in the future will apparently be 

included in the Brexit negotiations. 

It is impossible, though, to predict what 

the wider impact will be on our economy 

or the property market at this stage but if 

migration is reduced, then the pressure on 

housing should be reduced and the housing 

needs assessed more accurately. 

Information Governance 

Most of the laws in information governance 

are derived from European legislation. 

The Data Protection Act, the Privacy and 

Electronic Communications Regulations, 

the Re-use of Public Sector Information 

Regulations, the Environmental Information 

Regulations – all of these are examples of 

UK laws derived from EU directives. For 

primary legislation, such as the DPA, leaving 

the EU will have no immediate effect. For 

secondary legislation, such as the EIRs, 

the situation is more complicated. These 

were made under powers derived from the 

European Communities Act 1972, which is 

the statute that governs our membership of 

the EU. 

Family Law 

Leaving the EU will have a knock-on effect 

on a range of family matters governed by 

the current system, which pulls together 

strands of EU and domestic legislation into 

a single Family law regime. Changes are 

likely to be felt most keenly by international 

families. 

disappear. Parties will therefore potentially 

be afforded greater flexibility as to where 

they choose to divorce. However, matters 

could become increasingly costly if the 

proposed jurisdiction is contested and, in 

these circumstances, parties may well find 

themselves litigating over jurisdiction issues 

before the main proceedings are dealt with 

at all. 

Enforcement of existing domestic Orders 

concerning maintenance, child contact, and 

domestic violence will also be affected. EU 

legislation currently works with domestic 

legislation to provide a relatively simple 

framework for enforcement of such Orders 

in other EU member states. Brexit means 

that the system will not operate as such any 

longer, thereby potentially undermining 

the current system of mutual co-operation 

between Courts. 

The law governing international child 

abduction would also see some changes, 

albeit that these would be less significant. 

This is because the main international 

legislation governing this area is found 

in the 1996 Hague Child Protection 

Convention and the 1980 Luxembourg 

Convention, which will remain in force. 

However, changes incorporated into these 

Conventions by later EU Regulations will 

fall away, leaving gaps to be filled at a later 

stage. The child abduction regime may be 

weakened in the interim until a comparable 

system is put back into place through 

re-negotiation of bilateral agreements 

with different states to replicate the lost 

provisions. 

For more information on what leaving the 

EU will mean for your business visit www. 

blakemorgan.co.uk/brexit or email brexit@ 

blakemorgan.co.uk 

Bruce Potter 

Partner Chairman at EMD at Blake Advocates Morgan LLP 

T: Email: +356 brexit@blakemorgan.co.uk 

22030000 


Tonio Bruce advises a Partner both at private EMD Advocates and public since organisations 2003 and on also all holds aspects directorships of commercial, in various corporate companies policy within and governance the EMD advice. 

group. He specialises in corporate law, gaming law, trusts and foundations, tax law and employment law. 

Main areas of practice 


Bruce deals with corporate work, especially spin outs, acquisitions and disposals and management buy-outs as well as 


extensive advisory work on business recovery and insolvency across receivership, administrations and complex partnership 

Examiner in company and commercial law at the University of Malta 

and public and treaty body insolvency and transfers. 

Bruce also deals with commercial work, especially in IT and information security, developing new legal models and mixed 

legal/advisory/educational approaches to new legal risks. Bruce supports organisational development and governance 

development across health and social care often working with multi-disciplinary teams from other professional disciplines. 

The hallmark of his advice has been the combination of legal excellence with commercial acumen to deliver effective 

practical solutions for clients. 

Clients 

For the past 20 years, Bruce has worked on transactions for a wide variety of public sector companies, trusts and 

organisations. He has worked inside Whitehall both in the Department of Health, H M Treasury, Cabinet Office and DfE. 

He has particular experience working with major UK health organisations including the Department of Health and NHS. 

Bruce has worked on the Procurement Guide, Competition Policy, Transactions Manual, TCS programme and other policy 

programmes. He has also led recent work on finding a future structure for the Mid Staffs NHS Foundation Trust through the 

innovative TSA process. 

In terms of jurisdiction in divorce matters, 

the current rule of “first in time” as to 

where proceedings will be dealt with will 




The Referendum – One Month On 

Nancy Curtin 

Introduction 

It is now one month since the 23 June EU Referendum, 

and few could have anticipated the positive tone to 

markets and surprisingly buoyant reaction to the Brexit 

result. Since 23 June, equity markets have rallied strongly 

while bond yields have fallen further, and the Sterling is 

still trading at an all-time low versus major currencies. 

RETURNS SINCE BEFORE THE UK REFERENDUM: 

Equities Local 

Currency 

Equities GBP 

10Y Gov. Bond 

Yield 

GBP vs. Currency 

UK 5% 5% -0.58bps - 

US 3% 17% -0.18bps -12% 

Europe -1% 9% -0.12bps -9% 

Japan 2% 15% -0.08bps -12% 

Source: Morningstar, Bloomberg, data from 23 June to 22 July 2016. 

The positive tone can be explained by a 

number of factors: 

• Investor relief at seeing definitive 

leadership in the UK. Prime Minister 

May is seen to be pursuing a judicious 

review plan for Brexit as opposed to 

helter-skelter invocation of Treaty 50. 

• Central Banks have signalled their 

willingness to remain accommodative 

in the face of any significant slowdown 

or systemic event, with both the Bank 

of England and ECB promising further 

support if needed. 

• Elsewhere in the world, US & China 

have announced economic numbers 

which signal a stronger tone to the 

second quarter. Investors for the 

moment believe these economies to be 

largely insulated from events in Europe. 

• The US market has hit an all-time high, 

buoying sentiment elsewhere in the 

world. 

• When counterbalancing these positive 

‘relief’ factors, there are still some 

worrisome signs. 

• Geopolitical events remain at the 

fore with weekly terrorist incidents 

providing an unnerving backdrop to 

global stability. 

• Bank stocks remain under pressure 

across Europe, with large bank bail-outs 

in Italy and weakness in European bank 

shares a concern. 

• Economic growth numbers in Europe 

and Japan remain weak, despite 

substantial liquidity injections through 

bond buying and negative interest rate 

policies in force. 

• UK PMI numbers (an indicator of the 

health of the manufacturing sector) 

have shown a decisive downturn in the 

UK, with the headline service sector 

PMI falling to 47.4 (below 50 indicates 

slowing activity), the lowest level since 

2009. 

• Second-quarter earnings have kicked 

off with mixed results from across the 

globe. 

Against this backcloth, investors remain 

watchful, feeling that there are still ample 

risks in the world that could derail the 

current rally. This has been a characteristic 

pattern of financial markets in 2016 

– surprising market rallies following 

significant market declines, while bond 

yields continue their relentless move lower. 

High volatility has boosted 

“safe” and income assets 

Heightened volatility and the decline in 

bond yields have led to an enormous 

appetite for income and safety. 

Two interesting statistics are worth noting: 

• So far this year, the percentage of days 

when the US intra-day volatility has 

been greater than 2% has been close 

to 15% versus an average of 4% for the 

last 3 years. In the UK, that number is 

even higher. 

• The yield on ten-year gilts is below 

the previous low recorded in 1897 

and the lowest level since Bank of 

England records started in 1703. 

Today, over a third of the $25 trillion in 

global government bonds is yielding a 

negative rate of return. 

As a result, stocks that look like bonds have 

led the rally across equity markets year to 

date. In the US, the telecommunications 

index is up 22%, utilities are up 21% and 

energy (because of it’s higher than market 

yield and the bounce in oil prices) is up 

14%. Yields are close to 4% across these 

sectors. This pattern has been mirrored in 




other global markets, with utilities, staples 

and telecommunications up close to 10% in 

other developed markets excluding the US. 

From monetary 

to fiscal stimulus 

Outlook 

If any of these early indications of more 

sustainable business franchises, which – 

in addition – continue to deliver earnings 

growth. 

Is “safety” expensive? 1 

• We believe that “safe” and high 

yielding stocks are now expensive, 

trading at an average premium of 

30% to the market (see footnote). 

Normally, these stocks trade at 

anywhere between a 10-20% discount. 

“Safe” companies are those that offer 

dividend income but little earnings 

growth, or income stocks with high 

yields (such as in the energy sector) but 

with inherent cyclicality and risk in the 

underlying business. 

What could be the catalyst for this rotation? 

If policy makers significantly embrace 

stimulative fiscal policy measures, as is 

expected by some, this would have a 

meaningfully positive impact on the outlook 

for growth. 

Investors perceive that the monetary policy 

toolkit is nearing exhaustion, and negative 

interest rates in Europe and Japan have 

yet to have the desired impact on growth. 

As a result, the policy narrative seems to 

be changing. Fiscal policy is now becoming 

more widely discussed as a stimulus tool, 

and the change in policy is coinciding with 

political “regime shifts’: 

expansionary fiscal policy come to pass, 

this will support portfolios with a “quality 

growth” bias. Interestingly, since the 24 

June rally , there has been a discernible 

rotation in sector leadership with the 

perceived ‘safer’ telecom, utility and income 

and energy sectors underperforming other 

sectors (such as technology, healthcare and 

industrials). 

It is too early to say whether this shift 

signals a more substantial trend reversal, 

but we believe it still makes sense to 

favour compares with quality growth, 

strong balance sheets, good cash flows and 

Given that valuation, expansion has been 

a significant contribution to total return, 

and valuations are rich as a result, there is 

lower scope for this to continue. Companies 

must now deliver earnings growth to 

justify further increases in valuation. In a 

low growth environment in which equity 

valuations are far from cheap, we believe 

investors will continue to pay for persistent 

and sustainable earnings. 

• We believe that “safe” stocks, 

in particular utilities and 

telecommunications shares may be 

at significant risk as investors rotate 

from income sectors on rich valuations 

to embrace quality growth. (They also 

tend to be hurt when interest rates 

rise.) 

• The EU referendum and new Prime 

Minister has brought an end to 

Osborne’s austerity, and the objective 

of a balanced budget for 2020. 

• Japan looks close to announcing a 

substantial fiscal stimulus package. 

• In the US, both Trump and Clinton 

stand for increases in infrastructure 

spend, potential tax amnesty for US 

companies to repatriate cash and 

reform of the tax code; with Trump 

calling for a lowering of the corporate 

tax rate from 35% to 15%. 

Nancy Curtin 

Partner Chief Investment at EMD Advocates Officer Close Brothers Asset Management 

T: +356 +44 (0) 22030000 800 588 4064 

Email: nancy.curtin@closebrothers.com 


Tonio Appointed is a Partner in 2010, at Nancy EMD Advocates oversees a since successful, 2003 and award also winning holds directorships team of 55 investment various professionals companies within the a highly EMD disciplined 

group. investment He specialises process. in corporate law, gaming law, trusts and foundations, tax law and employment law. 

Prior Nancy to has joining over EMD, 20 years’ Tonio experience provided including house Counsel Managing for Partner, one of the Fortune, largest where consultant she ran firms an alternatives in Malta and investment was a 

member business, of Schroders the Malta-EU where Steering she was Action Head Committee of Global Investments (MEUSAC) Core for its Group. $20bn He Global has also Mutual been Fund Visiting businesses Lecturer and Barings 

Examiner where she in was company Head of and Emerging commercial Markets law and at the served University in a range of Malta of global asset allocation roles. Nancy holds a bachelor’s 

degree in political science, summa cum laude, from Princeton University and an MBA from Harvard Business School. 

• Xi Jinxing has implemented significant 

fiscal stimulus in China; many speculate 

that that is all part and parcel of 

stabilising growth at the 6% mark while 

cementing his leadership position for 

the upcoming 19 th Communist Party 

Congress (end 2017). 

1 Footnote: Source: www.bernstein.com “Keep Calm 

and Carry On” 2016 First Half Client Review. 30th June 

2016, Bloomberg, CRSP, FactSet, MSCI, and AB. Past 

performance is not a reliable indicator of future returns. 

Safe stocks defined as the lowest quintile of monthly 

beta within the AB US Large Cap universe of stocks. 

Premium/discount is versus the universe average. 





and the Brexit Decision 

John Olsen 

On 24 June 2016, the United Kingdom voted to leave 

the European Union. The United Kingdom and the 

European Union are now dealing with the aftermath of 

this momentous decision, raising many questions as to 

what this means for our clients and the protection of their 

valuable IP rights both in the United Kingdom and the 

European Union. 

The process of leaving the EU is complex 

and to a great extent unknown—no 

country had ever left the EU before, 

although Greenland left the scope of the 

European Union about 20 years ago. The 

UK may not be alone however as the same 

political forces which have welled up and 

overwhelmed the political establishment 

in the United Kingdom are present in other 

European countries so Britain may not 

be the last European country to breakaway 

from the EU in the near future. 

Furthermore, there are elections set down 

in virtually all the big countries of Western 

Europe over the next 18 months. The 

political atmosphere can only be described 

as both febrile and explosive. 

The Near Term 

The UK will not be leaving the EU until the 

British PM invokes Article 50 of the Lisbon 

Treaty. Once this has been done, it triggers 

a 2 year time limit for the EU and UK to 

negotiate the UK’s exit terms. However, 

some commentators have said that the reorganisation 

is the most complex economic 

reorganisation since 1945, so it could take 

5 or even 10 years for the entire process to 

work itself out. 

Patents and 

European Patents 

Patents which are administrated through 

the European Patent Office are not affected 

by the vote of 24 June 2016, and such 

patents will continue in force, in the United 

Kingdom or any other territory which is 

part of the European Patent Convention. 

Nationals of European Convention 

(including nationals of the United Kingdom) 

can continue to act for clients before the 

EPO without restriction. Membership of the 

European Union is not relevant regarding 

such representation. With respect to the 

Community Patent, that is simply treated 

as a designated office in a European patent 

office and is no different from any other 

country in this respect. Finally in relation to 

the Unified Patent Court there simply is not 

enough known at the moment to proffer 

any manner of meaty information. 

Trademarks and Designs 

As you may know, a trademark may be 

protected in the UK by a national UK 

or EU registration both of which can be 

obtained directly or via an International 

Registration under the Madrid Protocol. 

Ultimately, I anticipate EU registrations 

for both trademarks and designs will no 

longer cover the UK. At this stage, no one 

knows whether existing EU registrations will 

extend automatically to the UK or whether 

some kind of validation process will be 

instigated. It may be wise for brand owners 

to consider seriously the value of securing 

rights in the UK now, particularly if they 

plan to licence those rights in the UK and 

some or all of the European Union Member 

States going forward. It will probably be at 

least two years and probably much longer 

before the process to be followed becomes 

clear. In so far as Designs are concerned 

the Regulation 2015/2424 established the 

EUIPO in March 2016 and deals with the 

EUIPO generally and does not distinguish 

between trademarks and designs. 

Copyright 

Copyright Law has been harmonised at the 

European level in numerous respects – for 

example, the term of protection, the acts 

amounting to infringement, performers’ 

rights and qualifying criteria for protection. 

EU legislation also regulates important 

issues such as the liability of internet 

service providers. The extent to which 

these will be affected by Brexit negotiations 

remain to be seen. 




Customs Seizure 

EU Legislation empowers IP owners to 

partner with customs authorities in the 

EU Member States to seize, detain and 

ultimately destroy imported goods which 

infringe their rights. This is a particularly 

important tool for trademark owners in 

the fight against counterfeits. If the UK 

remains part of the EEA, the EU legislation 

on customs seizure would most likely 

continue to bind the UK. However, under 

a WTO model, the UK would be free to 

reject EU legislation and determine its 

own border controls. This in conjunction 

with the possibility of amendment of rules 

relating to the Exhaustion of Rights could 

mean that businesses could find it easier to 

prevent counterfeits from entering the UK, 

although, at the same time it also increases 

the costs in maintaining two separate 

border protection regimes. 

If you have any questions or have any 

comments, please contact John Olsen (john. 

olsen@lockelord.com). 

Brexit and its affect on 


Abida Chaudri, Julian Potter and Stewart Forrest 

John Olsen 

Partner at Locke EMD Lord Advocates LLP 

T: +356 +44 (0) 22030000 20 7861 9270 

Email: john.olsen@lockelord.com 


Tonio With more is a Partner than 30 at years’ EMD experience Advocates since intellectual 2003 and property also holds law directorships and in particular in various trade companies mark law, 25 within of those the EMD years 

group. practicing He specialises in Europe, John in corporate Olsen advises law, gaming clients law, on selection, trusts and acquisition, foundations, exploitation tax law and employment enforcement law. of trade mark rights 

throughout the world. His hands-on approach is unique in helping clients to understand the inter-relationship of IP rights 


worldwide and to ensure that their trade mark enjoys as much exclusivity as possible. John advises individuals through to 


multi-national companies. 

Examiner in company and commercial law at the University of Malta 

John has lectured on intellectual property topics for many organisations and in many countries on virtually every continent. 

John is bi-lingual in English-French and he speaks social German and Spanish, facilitating his ability to assist clients in doing 

business in different countries. 

The Brexit outcome to the UK’s referendum on EU 

membership has no immediate effect on intellectual 

property in the UK – EU laws remain (pun not intended) 

in effect until such time as Article 50 notification 

is made by the UK and the consequent 2 year 

negotiation period ends (unless extended by agreement 

of the other 27 member states). 

During the negotiation process, the UK 

will remain part of the EU. To ensure an 

orderly transfer to a post-Brexit regime, 

transitional provisions will likely be put in 

place to ensure no loss of IP rights once 

Brexit takes effect. It is clear however 

that preparation, portfolio reviews and 

establishing appropriate strategies in 

the coming months and during the runup 

to Brexit will be key to a successful IP 

transition. The preliminary analysis below, 

written by Abida Chaudri, Solicitor at Arc 

IP, and Dr Julian M Potter, Partner & Stuart 

Forrest, Senior Associate, at WP Thompson 

Intellectual Property, sets out some of the 

issues at this early stage. 




Trade Marks – 

No Immediate Changes 

UK trade mark registrations, whether 

obtained via the national route or by 

means of the Madrid Protocol International 

Registration system, will not be affected by 

Brexit. 

Post-Brexit and if the UK does not become a 

member of the EEA, European Union trade 

marks (EUTMs) will not cover the UK and 

national UK applications (or International 

Registrations designating the UK) will be 

necessary. 

EUTMs in force as at the date of Brexit will 

inevitably be affected, again assuming the 

UK does not become a member of the EEA. 

Currently, EUTMs cover the 28 EU member 

states as a single unitary right. On Brexit, 

EUTMs will no longer cover the UK but will 

continue to subsist in the remaining 27 

member states and be governed by EU law. 

Transitional provisions will very likely be 

enacted by the UK government allowing 

EUTMs to take effect as national rights in 

the UK. The mechanism by which this would 

occur has not yet been identified but could 

be one of the following: 

1. a) Conversion of EUTMs into national 

registrations 

It is already possible to convert EUTMs 

into national applications in any of the EU 

member states but this arises by virtue 

of EU legislation. Converted applications 

retain the original filing and priority dates 

and seniority claims of the EUTMs from 

which they derive. Fees are payable both 

to the EU intellectual Property Office 

(EUIPO) and, for UK conversions, to the UK 

IP Office (UKIPO). EU legislation states that 

converted marks are not to be subject to 

any additional or different requirements 

of national law – which means that, in the 

UK certainly, converted EUTMs are treated 

in the same way as national applications 

and (re-)examined, published and open to 

opposition. On the plus side, registration in 

the UK then results in a new 5 year grace 

period to commence genuine use. 

Conversion of EUTMs into national UK 

marks to address Brexit will require new 

UK legislation and need to consider, for 

example : whether a conversion fee will be 

payable to the UKIPO; if re-examination 

and opposition periods will occur; if the 

current requirement for all UK applications 

(including converted EUTMs) to declare 

that the mark is in use or there is a 

genuine intention to use in the UK should 

be maintained – especially for converted 

EUTMs over 5 years old that have not been 

used in the UK; whether use of converted 

EUTMs pre-conversion in any of the 

remaining EU countries will count as use 

in the UK especially where they are over 

5 years old and so would otherwise be 

vulnerable to non-use revocation in the UK. 

1. b) Re-registration of EUTMs in the UK 

This is distinct from conversion but will, 

again, require UK legislation. EUTMs 

could potentially be re-registered as UK 

registrations in the same straightforward 

way that UK registrations can be reregistered 

in Jersey. Or there could be 

a system similar to that adopted on the 

breakup of Yugoslavia – so for example, 

Serbian trade marks were automatically 

extended to Montenegro in May 2008 

without re-registation or payment of 

additional fees up until their renewal dates 

but new trade mark laws in 2010 required 

re-registration within 12 months. A similar 

scenario for EUTMs in the UK post-Brexit 

is possible, perhaps with some method of 

easily denoting the re-registered marks. 

The position of UK registrations which were 

used to claim seniority for EUTMs but were 

then allowed to lapse may be challenging. 

Seniority claims based on UK registrations 

will lapse on Brexit but it is debatable 

whether the UK would enact legislation 

allowing those national registrations to be 

restored so as to prevent loss of rights once 

EUTMs no longer extend to the UK. 

Brexit will also lead to the loss of the UK’s 

EU Trade Mark Courts and the UK will not 

then be able to grant (or be subject to) 

EU-wide injunctions. Whether EU-wide 

injunctions granted by UK-based EU Trade 

Mark Courts would remain enforceable 

post-Brexit is not clear. 

Since the UK would no longer be bound 

by decisions of the EU’s General Court, UK 

trade mark law (albeit EU-based unless 

amended) could well diverge over time, 

especially given its common law roots. 

Designs – 

No Immediate Changes 

Registered Community Designs (RCDs) are 

unitary rights covering all 28 EU member 

states and, like EUTMs, will no longer cover 

the UK post-Brexit. As for EUTMs in force 

on Brexit, a conversion or re-registration 

system for the UK is anticipated. The UK 

has its own design registration system (and 

UKIPO fees have recently reduced) but 

there may perhaps be increased interest 

in the Hague International Design System 

which operates similarly to the Madrid 

International Trade Mark regime, providing 

national registrations in multiple countries 

through a centralised application process. 

Unregistered Community Design Rights may 

not be protected in the UK post-Brexit since 

the UK has its own system for unregistered 

designs. 

Patents – No Change to 

Current Arrangements 

The mechanisms for obtaining patent 

protection in both the UK and Europe 

will not be affected by Brexit. It will still 

be possible to apply for patents via the 

national route and at the European Patent 

Organisation (EPO). 

The EPO is not an EU institution, and the 

European Patent Convention (EPC) is a 

separate international agreement that sets 

up the European Patent Organisation and 

the EPO. 

The member states of the EPO already 

include several countries that are not 

member states of the EU, such as 

Switzerland, Iceland, Norway and Turkey. 

It is for this reason that Brexit will not have 

any impact on the UK’s membership of the 

EPO, and the ability of applicants to obtain 

European patents via the EPO that are 

effective in the UK. 

UK Patents and 

pending European 

patent applications 

UK Patents will not be affected by Brexit, 

whether they have been obtained via 

the national route or from validation of a 

European patent granted by the EPO. 

European patent applications that are 

pending at the EPO will continue to 

designate the UK. Once granted, the 

European patent can then be validated in 

the UK regardless of Brexit. 

What about the Unitary 

Patent and the Unified 

Patent Court? 

The patent landscape in Europe is due to 

change in the future with the introduction 

of European patents with unitary effect 

(“Unitary Patents”), which will present a 

further route by which applicants can 

obtain patent protection in Europe when 

(and indeed if) it is brought into effect. 

The predicted implementation date of the 

Unitary Patent was sometime in 2017, but 

that is likely to be delayed since the UK is 

currently one of the three states that needs 

to ratify the treaty. 




Unitary effect of a European patent, which 

member states participating in the Unified 

national system of protection is anticipated 

at the date of the agreement or as 

leads to a Unitary Patent, can be requested 

Patent Court agreement, i.e. potentially a 

post-Brexit, with the mechanism for 

constituted from time to time. Terms within 

following grant of the European patent. 

pan-EU injunction. 

achieving this to be established. There may 

agreements may also reference “Europe” 

A Unitary Patent will have effect in the 

participating member states of the EU, i.e. 

not necessarily all the member states of the 

EU (for example, Croatia, Poland and Spain 

are not participating at the time of writing). 

If the UK leaves the EU, then it may not be 

able to participate in the Unitary Patent, 

and the associated Unified Patent Court. 

Several proposals have, however, been 

discussed that would enable the UK to do 

so following Brexit. 

If the UK does not participate in the Unitary 

Patent following Brexit, then a Unitary 

Patent will not extend to the UK. Protection 

in the UK will have to be obtained through 

the routes that currently exist, i.e. the 

national route or from validation of a 

European patent granted by the EPO. 

The Unified Patent Court (UPC) is a 

proposed common patent court open for 

participation of all member states of the 

European Union. The UK has been allocated 

one of the divisions of the UPC central 

court and it is expected that this will be lost 

to an EU member state in light of Brexit. 

If the UK is not able to participate in the 

To reiterate, the Unified Patent Court will 

not have any jurisdiction over national 

patents. This remains the case, even for 

states that are participating in the Unitary 

Patent and the associated Unified Patent 

Court. 

Patent term extensions – 

Supplementary Protection 

Certificates (SPCs) 

A rather niche practice in Europe has 

developed around SPCs, which are available 

for various regulated, biologically active 

agents, namely human or veterinary 

medicaments and plant protection 

products. 

SPCs are currently granted under an EU 

regulation, which will no longer apply after 

Brexit. Similarly, extensions of the term 

of SPCs (following paediatric studies) are 

also granted under an EU regulation. There 

will, therefore, need to be new legislation 

in the UK in order to create rights that are 

equivalent to SPCs. 

also be a bilateral agreement with the EU 

for reciprocal protection. 

Trade Secrets 

The UK may not implement the EU Trade 

Secrets Directive of 5 July 2016 – EU 

member states have 2 years from this date 

to incorporate its terms into national law 

but if Brexit occurs before the 5 July 2018 

deadline, then this will not be necessary. 

The UK may enact its own trade secrets 

legislation, perhaps based on the Directive, 

but since the UK has indicated that its law 

is already compliant with the Directive no 

change is likely. 

Database Rights 

These came into being in the UK on 1 

January 1988 by virtue of EU legislation – 

The Copyright and Databases Regulations 

1997. Post-Brexit, databases created in the 

UK would not be protected unless the UK 

were to become a member of the EEA. 

in various ways. Whether or not the UK 

is included in each of these definitions of 

Europe will be a matter for assessment 

on a case by case basis, with appropriate 

variations even if the intention was clearly 

to cover the UK. 

Exhaustion of Rights 

Currently, IP rights attaching to goods 

in circulation in the EEA (EU, Norway, 

Leichtenstein and Iceland) by or with 

the consent of the IP rights holder are 

“exhausted” and further free movement 

within the EEA cannot be prevented (subject 

to limited exceptions such as changes to the 

condition of the goods). If the UK does not 

become a member of the EEA post-Brexit, it 

could be that exhaustion of rights will apply 

to the UK only so that goods entering from 

the remaining EU countries would infringe 

UK rights. 

What should businesses 

do to prepare for Brexit? 

Unified Patent Court, then the Court will 

not have jurisdiction over European patents 

validated in the UK. However, only 13 

member states of the EU need to ratify the 

Unified Patent Court agreement in order for 

it to come into force, so the Court might not 

have jurisdiction over more than half of the 

member states of the EU anyway – possibly 

not such a significant jurisdiction regardless 

of the UK’s participation or not. 

Copyright 

There is no system for registration of 

copyright either on an EU-wide basis or 

nationally in the UK. Accordingly, UK laws 

will continue to apply, as will the UK’s 

membership of the Berne Convention, the 

Universal Copyright Convention and the 

WIPO Copyright treaty. 

.eu Domains 

These can only be registered by businesses 

established in or individuals who are 

residents of EEA countries – so if the UK 

does not become an EEA member, UKbased 

businesses and UK residents will 

need to look at registering, and using, 

alternative domains. 

Whilst not directly related to Brexit but 

important for EUTMs and converted / 

re-registered UK trade marks pre and 

post-Brexit : For EUTMS filed before 22 

June 2012, review and if appropriate file 

Declarations at the EUIPO before the 24th 

September 2016 deadline stating that the 

intention on filing was to seek protection 

for goods / services beyond those falling 

within the literal meaning of any class 

It might be the case that businesses in the 

UK, or businesses who are contemplating 

setting up in the UK, think that it would be 

desirable for the UK not to be within the 

jurisdiction of the Unified Patent Court. 

For example, UK based business might 

derive benefit from the knowledge that 

they will not be at risk of being the subject 

of an injunction that has effect in all of the 

Geographical Indications 

and Designations of Origin 

These are protected by an EU-wide regime 

– examples are Yorkshire Wensleydale 

cheese (geographical indication) and Stilton 

blue cheese (designation of origin). A 

Agreements 

Where “Europe” is the territory covered by 

agreements such as licences of IP rights 

or co-existence agreements, this may be 

stated in a number of ways – for example: 

Europe, or the EU, or the EU as constituted 

headings covered by the EUTM. The scope 

for filing such declarations is greater, and 

more complicated, than appears at first 

sight and whilst there are qualifications, 

declarations that are accepted by the EUIPO 

will essentially extend the goods / services 

beyond those originally registered. 




Review your current IP portfolio, decide 

which EUTMs and RCDs you will wish to 

convert to or re-register as national UK 

rights and budget for conversion / reregistration 

and subsequent renewal costs. 

Review your filing strategy for EUTMs going 

forward and consider filing UK trade mark 

and design applications alongside EUTMs 

and RCDs if the UK is a key market. 

Do not surrender any UK trade mark 

registrations which form the basis of 

seniority claims for EUTMs and ensure that 

the former are maintained since they will 

have earlier filing dates than EUTMs which 

are converted / re-registered as UK trade 

marks on Brexit. 

Where current EUTMs have not been 

used in the UK (but are used in other EU 

countries) and where it is commercially 

appropriate to do so, take steps to establish 

genuine use (for the purpose of creating 

a market) in the UK pre-Brexit; also bear 

this in mind for EUTM and UK trade mark 

applications going forward. 

Review agreements relating to IP and 

establish if they apply to the EU as at the 

date the agreements came into force or to 

the EU as constituted from time to time; 

either way, it may be necessary to vary the 

agreements so they apply specifically to 

the UK, even if the intention was clearly to 

cover the UK. Post-Brexit, the UK should be 

referenced separately to the EU. 

Be aware of your, and legal representatives’, 

rights of representation for EUTMs and 

RCDs. Currently, representatives (for 

EUTMs) must be based in the EEA, be 

legal practitioners qualified to act as 

representatives in one of the EEA countries 

and have a place of business within the EEA. 

If the UK is an EEA member post-Brexit, 

then all well and good but if not, it is highly 

likely that representatives will maintain 

their rights of representation at the EUIPO 

by other possible means. 

Monitor developments on Brexit so that 

all necessary actions can be taken, and 

appropriate resources devoted, in a timely 

manner. 

Remember that there are no immediate 

changes and there will be a 2 year period 

to transition IP before Brexit actually takes 

effect. Forward planning however is key. 

Authors: Abida Chaudri, Solicitor, Registered 

Trade Mark & Design Attorney (UK & EU) and 

Director, ARC IP; Dr Julian M Potter, Partner & 

Stuart Forrest, Senior Associate, WP Thompson 


Abida Chaudri is an experienced solicitor 

and registered UK and European trade 

mark & design attorney with a background 

in both private practice and industry. She 

has broad experience and handles all 

aspects of trade marks, designs and soft IP, 

contested, non-contentious, and advisory 

with particular emphasis on strategy. She is a 

widely published author of numerous articles 

on IP issues and chair of the International 

Trademark Association’s Indigenous Rights 

Policy & Analysis Sub-Committee. 

Dr Julian M Potter is a Chambers recognised 

tier one UK & European Patent Attorney and 

Intellectual Property litigator. His practice 

encompasses all physics based disciplines 

and he has wide experience of drafting and 

prosecuting patents for the UKIPO, the EPO 

and patent offices throughout the world. Julian 

also represents clients in contentious matters 

such as oppositions and appeals and in 

advisory work including infringement, validity 

opinions and freedom to operate opinions, 

due diligence investigations, IP strategy, and 

product clearances. He holds a Higher Courts 

Litigation Certificate entitling him to conduct 

IP litigation in the High Court and has been 

involved in both Patents Court and Intellectual 

Property Enterprise Court litigation covering a 

wide range of technologies. 

Stuart Forrest is a UK and European Patent 

Attorney and a member of WP Thompson’s 

Chemistry and Life Sciences team. His practice 

covers all aspects of chemistry and he has a This article was first published in Lawyer 

particular interest in lifecycle management Monthly Magazine in July 2016 and is 

and obtaining supplementary protection reproduced here with the kind permission 

certificates. He is a CIPA delegate to the 

of Parity Media Limited 

UKIPO’s Patent Practice Working Group. 

Abida Chaudri 

Solicitor at ARC IP 

T: +44 (0) 7815 024 190 

Email: mail@arc-ip.co.uk 

Abida is a UK and European Trade Mark and Design Attorney and Solicitor (non-practising). She started working in the 

intellectual property field in 1996, having previously qualified and practised as a commercial litigation solicitor. 

Her keen interest in intellectual property prevailed however and she joined the leading firm of trade mark and patent 

attorneys, D Young & Co. After several years, she moved to the niche law firm Bristows and later to the global law firm 

Baker & McKenzie. She has also worked in-house, undertaking lengthy secondments at Diageo and at GlaxoSmithKline 

where a major project was a global prescription to over the counter product switch involving trade mark clearance and 

launch activities, parallel regulatory clearance via the MHRA, dealing with AdWords, eBay takedowns, infringement, anticounterfeiting, 

negotiating coexistence agreements and myriad other IP issues. 

Julian Potter 

WP Thompson IP at Partner 

T: +44 (0) 20 7405 4442 

Email: JMP@wpt.co.uk 

T and engineering expert. Julian’s practice encompasses all physics-based disciplines and reflects his high academic 

qualifications and technical abilities. Julian’s technical areas of expertise include telecommunications and associated 

technologies including design and fabrication; semiconductors; optics; control systems; software; cryptography; mechanical 

engineering; nanotechnology; mechanical devices; nuclear physics and imaging; electronics and micro processor design; 

voice recognition and text-to-speech conversion and oil services technology. He has wide experience in drafting and 

prosecuting patent applications and representing clients before both the UK Intellectual Property Office and the European 

Patent Office. 

Stewart Forrest 

Senior Associate at WP Thompson IP 

T: +44 (0) 20 7405 4442 

Email: JSFO@wpt.co.uk 

Stuart is both a Chartered Patent Attorney and European Patent Attorney and deals with a wide range of chemical subject 

matter, with a particular focus on applications relating to industrial chemistry, chemical engineering and pharmaceutical 

chemistry. He has experience of drafting and prosecuting applications before both the European Patent Office (EPO) and the 

UK Intellectual Property Office, and representing clients at post grant (opposition and appeal) proceedings before the EPO. 

He also has experience of managing global patent portfolios (pre and post grant), advising on strategic issues and lifecycle 

management, including applying for SPCs and patent term extensions. 




Jexit – the constitutional consequences 

for Jersey of Brexit 

Ashley Hoy 

The Brexit referendum result of 23 June 2016 and the 

consequent negotiations of the UK’s exit from the EU have 

the clear potential to compel Jersey into a constitutional 

clash with the UK. 

Jersey, like Guernsey and the Isle of Man, is a Crown 

Dependency and is not part of the UK but a self-governing 

jurisdiction with its own constitution legislature and laws. 

Jersey’s self-governing jurisdiction pre-dates the existence 

of Parliament. The Crown can legislate for Jersey by 

Act of Parliament or through Order in Council and is 

customarily responsible for Jersey’s foreign affairs including 

EU Treaties. 

By Article 355(5) (c) of the Treaty of the 

European Union and Protocol 3 to the 

UK’s original Accession Agreement, the 

Crown Dependencies are part of the EU 

for the purposes of free movement of 

goods but not of services, people or capital. 

In Jersey, effect is given to these treaty 

arrangements by Jersey domestic law, the 

European Communities (Jersey) Law 1973. 

Jersey, therefore, is neither a member state 

nor associate member of the EU. Under 

Protocol 3, Jersey is part of the Customs 

Territory of the Union meaning that 

there is free movement of industrial and 

agricultural goods for trade between Jersey 

and the EU. Jersey does not contribute to 

and does not receive anything from the 

funds of the European Union. Article 4 of 

Protocol 3 requires Jersey to supply the 

same treatment to all natural and legal 

persons of the Union. 

Jersey residents do not enjoy full EU 

citizenship rights under Protocol 3 although 

the vast majority of the population are 

British citizens by virtue of their parents or 

grandparents or past residence in the UK. 

They are therefore EU citizens with the right 

to move, settle and work freely within the 

EU. The residents of Crown Dependencies 

were not entitled to participate in the EU 

referendum because although they were 

British citizens they had not been resident 

in the UK within the last 15 years. The 

residents of the Crown Dependencies 

became a disenfranchised cluster of the 

British population in relation to a Brexit 

referendum vote that has considerable 

consequences for fundamental rights of 

residents of Crown Dependencies. 

Article 50 of the Treaty of the 

European Union provides: 

1. “Any member state may decide 

to withdraw from the Union in 

accordance with its own constitutional 

requirements. 

2. A member state which decides to 

withdraw shall notify the European 

Council of its intention. In the light of 

the guidelines provided by the European 

Council, the Union shall negotiate 

and conclude an agreement with that 

state, setting out the arrangements for 

its withdrawal, taking account of the 

framework for its future relationship 

with the Union. That agreement shall 

be negotiated in accordance with Article 

218 (3) of the Treaty on the Functioning 

of the European Union. It shall be 

concluded on behalf of the Union by the 

Council, acting by a qualified majority, 

after obtaining the consent of the 

European Parliament. 

3. The Treaties shall cease to apply to the 

state in question from the date of entry 

into force of the withdrawal agreement 

or, failing that, two years after the 

notification referred to in paragraph 

2, unless the European Council, in 

agreement with the member state 

concerned, unanimously decides to 

extend this period. 

4. For the purposes of paragraph 2 

and 3, the member of the European 

Council or of the Council representing 

the withdrawing member state shall 

not participate in the discussions of 

the European Council or Council or 

in decisions concerning it. A qualified 

majority shall be defined in accordance 

with Article 238(3) (b) of the Treaty on 

the functioning of the European Union. 

5. If a state which is withdrawn from the 

Union asks to re-join, its request shall 

be subject to the procedure referred to 

in Article 49.” 

It is clear that only the departing member 

state can initiate Article 50, and a formal 

decision must be communicated to the 

EU to commence the withdrawal process. 

Once the process has begun by Article 

50(3), the treaties will automatically cease 

to apply to the withdrawing member state 

after a period of two years or on such other 

date as maybe agreed. If no agreement 

is reached after two years, then the 

withdrawing state will cease to be part of 

the EU. Once the Article 50 trigger is pulled, 

it is an automatic process of withdrawal. 

On this basis, not only will EU Law cease 




to operate in the UK but also in the Crown 

Dependencies including Jersey. 

The fundamental rights afforded to Jersey 

residents under Protocol 3 namely the right 

to move, settle and work and the single 

market will be shut down by the operation 

of Article 50. This whole process has no 

requirement to engage Jersey residents 

in the referendum process or the Jersey 

Government in any consultation as part 

of the negotiation envisaged by Article 50. 

The democracy provisions in Article 3 of 

Protocol 1 of the European Convention 

on Human Rights now incorporated in 

the domestic law of the UK and Jersey 

require that there be no legislation without 

representation, yet these rights of Jersey 

residents stand to be removed by the UK in 

breach of basic democratic principle. 

It is likely that the “constitutional 

requirement” (mentioned in Article 50(1)) 

is that the UK Parliament alone, and not 

the UK Government, can pull the Article 

50 trigger for Brexit. It is a fundamental 

constitutional principle of legality that 

only Parliament can modify or abrogate 

domestic rights. Article 50 inevitably leads 

to the modification or abrogation of existing 

statutory rights under UK EU Law and the 

proper interpretation of the European 

Communities Act 1972 and the European 

Union Act 2011 is that only Parliament can 

authorise any amendment or withdrawal 

from an EU treaty. Doctrines of legality and 

parliamentary sovereignty require that only 

primary legislation can abrogate or modify 

existing domestic rights. All the indications 

so far are that the Article 50 trigger will 

be pulled by Parliament and not the UK 

executive. 

Jersey has its own constitutional 

requirements embodied in the States of 

Jersey Law 2005, Article 31(1) as follows: 

“Where is it proposed – 

1. That any provision of a draft Act of 

the Parliament of the United Kingdom 

should apply directly to Jersey; or 

2. That an order in Council should be 

made extending to Jersey- (i) Any 

provision of an Act of the Parliament 

of the United Kingdom …… “the Chief 

Minister shall lodge the proposal in 

order that the States may signify their 

views on it.” 

The only view that the States of Jersey can 

legitimately signify when presented with 

an Act of Parliament pulling the Article 

50 trigger is that the Act of Parliament be 

rejected. Article 50 (3) makes withdrawal 

from the EU automatic once notification of 

withdrawal is given. The States of Jersey are 

bound to reject it for two reasons: 

1. For the failure of democratic process in 

disenfranchising Jersey residents on the 

principle of Brexit 

2. For its removal of the fundamental 

rights of free movement work and 

residence in the EU of British Jersey 

residents, only removable by primary 

legislation of the States of Jersey and 

not by the unilateral action of the UK 

Parliament. Only the States of Jersey can 

remove Jersey’s European Community 

Law of 1973. 

3. There are clear dangers in relying on the seek an erosion or eradication of the 

Brexit negotiation process to preserve status of Crown Dependencies as part 

the rights of Jersey residents. Not only of the agreement on the terms of Brexit. 

is there no guarantee that negotiations 

would be successful in an automatic This outcome may well direct Jersey into 

process of withdrawal but the interests considering independence if its interests 

of the UK in such negotiations are likely are sidelined in what is set to be a difficult 

to be promoted at the expense of the Brexit process. 

Crown Dependencies. The remaining 

EU members may (or are even likely to) 

Ashley Hoy 

Partner at Voisin Law 

T: +44 (0) 1534 500301 

Email: ashleyhoy@voisinlaw.com 

Ashley’s practice includes all aspects of commercial and insolvency litigation and mediation including trust and estate 

disputes, professional negligence and fraud and asset tracing, in particular cases involving trust fund and investment losses. 

Other specialisations include public law and financial regulation. 




Implications of the United Kingdom Leaving the 

European Union on Climate Change and Energy Law 

Autho 

Introductory Comments Context 

1. The purpose of this document is to 4. The principal issue which it will be 

chart the possible implications of the 

necessary for the UK government to 

United Kingdom exiting the European address following the referendum 

Union on Climate Change and Energy decision in favour of an exit from the 

Law. 

EU is the resultant legislative lacuna. As 

will be detailed below, there are various 

2. It is at this early stage, of course, of 

EU Directives and Regulations which are 

paramount importance to recognise 

focussed on addressing climate change 

that much of this evaluation is made 

concerns and, similarly, the EU has also 

against a backdrop of uncertainty: the ventured into energy law. To leave the 

terms, time-scale, and process of ‘Brexit’ EU, it is presumed, will be to see the 

are, as yet, largely unknown. 

repeal or disapplication of EU laws, 

and so it will be necessary for the UK 

3. This said, however, the value of this 

government to consider its preferred 

evaluation comes from its setting out position on the way to replace (or 

the likely affected areas, and in raising otherwise deal with) these laws. 

awareness of the complexity which 

Brexit will yield. 

5. The UK is a whole comprised of nations 

with various devolved powers, as well 

as varied political, legal, and social 

characteristics. This structural make-up 

is likely to result in differing approaches 

to legislating on hitherto EU-led areas 

in the event of Brexit. Each devolved 

nation, to the extent that it is capable, 

may prefer different approaches to 

dealing with the legislative questions 

raised by an exit from the EU. It 

has also, rightly, suggested that the 

matter will be complicated by the 

UK’s relationship with the Crown 

Dependency of Gibraltar, and the 

Sovereign Base areas in Cyprus. 

6. It is trite to say that environmental 

concerns (which are addressed 

by environmental legislation) are 

international concerns which generally 

do not respect national boundaries. For 

this reason, it has often been recited 

that environmental concerns need 

to be addressed at an international 

level: it is nonsensical to legislate 

on an individualistic basis when the 

source or nature of the matter at hand 

cannot thereby be appropriately or 

meaningfully managed. 

7. This international characteristic of 

environmental law is perhaps all the 

greater in the context of climate change. 

When we speak of climate change, we 

are not discussing specific climates 

or biomes, but rather changes to the 

global climate. The global climate can 

be understood as a closed system 

where cause and effect operates 

on a global scale. Consequently, the 

EU, as a community of nations, has 

understandably considered itself 

competent and justified to legislate on 

climate change issues. 

8. This global awareness of climate issues 

can be very clearly seen through the 

negotiations at the COP21 UN Climate 

Change Conference in Paris, which 

resulted in the ambition of “[h]olding the 

increase in global temperatures to well 

below 2°C above pre-industrial levels and 

to pursue efforts to limit the temperature 

increase to 1.5°C...recognising that this 

would significantly reduce the risks and 

impacts of climate change”. 1 

9. Energy law similarly has an international 

flavour. Bradbrook defines energy law 

as ‘the allocation of rights and duties 

concerning the exploitation of all energy 

resources between individuals, between 

individuals and the government, 

between governments and between 

states.’ 2 

10. With the benefit of hindsight, it is 

perhaps somewhat surprising that EU 

energy policy and regulation has not 

always engaged with its environmental 

characteristics. As Bell, McGillivray, 

and Pedersen suggest, ‘[h]istorically, 

EU environmental policy has had little 

to say about energy, and equally EU 

energy policy has had little impact 

on its environmental policy.’ 3 Energy 

law incorporates issues to do with 

competition, intellectual property, tax, 

and free movement more generally. 

Whilst this note does not suggest that 

this position is now entirely reversed 

– certainly these aspects of energy law 

remain very significant – we do believe 

that there is an increased awareness 

of the environmental impact of energy 

use and production. This awareness is 

shared by producers, distributors, and 

consumers, and so it is now inevitable 

that environmental concerns (with all 

their associated international facets) will 

influence energy law and policy. 

11. In any event, for the purpose of this 

article, it is worth highlighting the 

1 Article 2(1)(a), Paris Agreement (2015, COP21 

UNFCCC). 

2 AJ Bradbrook, ‘Energy Law as an Academic Discipline’ 

(1996) 14: 2 JERL 194. 

3 S Bell, D McGillivray, and O Pedersen, Environmental 

Law (8th ed, OUP 2013) 554. 




inherent link between the energy sector 

and climate change. Indeed, the energy 

sector is the most significant source of 

carbon emissions in the EU, amounting 

to around one-third of total emissions. 

objective of the EU is the efficient but 

proactive reduction in emissions, and to 

this end it is stated that the number of 

allowances shall be decreased year-onyear. 

18. As mentioned above, the link between 

the environment and energy policy 

has become more pronounced in the 

minds of the EU legislature, and this 

can be seen through another aspect of 

the 20-20-20 package: a 20% share for 

‘binding’, does not attract sanctions or 

infringement proceedings should the 

Member State fail to reach it. Therefore, 

an interesting question may be raised 

by Brexit: would the UK nevertheless 

be bound to fulfil its quasi-contractual 

Impacted Legislation 

12. Owing to the various recognised 

causes of climate change (which is to 

say, owing to the numerous sources 

of greenhouse gas emissions) the EU 

legislative portfolio seeking to address 

climate change is broad and engages 

with a range of different issues. Often, 

these legislative measures impact on 

the European energy sector, and so it 

is useful to deal with these two ideas 

together. 

13. Perhaps the most well-known EU 

legislative measure addressing climate 

change is Directive 2003/87/EC 

establishing a scheme for greenhouse 

gas emission allowance trading 

within the Community. This Directive 

endeavoured to facilitate Member 

States in fulfilling their commitments 

under the Kyoto Protocol to reduce the 

aggregate emissions of greenhouse 

gases. This Directive has been 

supplemented by Directive 2009/29/ 

EC, which extends the commitment to 

reduce emissions. The position under 

the most recent Directive is much in line 

with the ‘20-20-20 targets’: at least a 20 

percent reduction in greenhouse gas 

emissions in the EU by 2020 compared 

to 1990 levels. 

15. Subsequent legislative measures, 

such as Regulation 1031/2010, have 

been enacted to facilitate the effective 

operation of the emission allowance 

trading scheme. This 2010 Regulation 

explains how the auctioning process 

of allowances which are not allocated 

“free of charge” should be administered 

and operated. Similarly, Regulation 

920/2010 has been implemented to 

establish a system of standardised 

registries and electronic databases 

which oversee and monitor how 

allowances are issued, held, transferred, 

and cancelled within the scheme. 

16. In an attempt to highlight the economic 

basis of the emissions allowance trading 

scheme, whilst also demonstrating 

the global concern which climate 

change poses, Directive 2004/101/EC 

establishes that joint implementation 

and clean development mechanisms 

may be used within the scheme. 

17. In order to work progressively toward 

these legislated objectives, a number 

of ancillary measures have been 

adopted. For example, Decision 

280/2004/EC, implemented by 

Commission Decision 2005/166 

establishes a mechanism for monitoring 

EU greenhouse gas emissions. This 

mechanism is devised and implemented 

by national and Community 

renewables in EU energy production, 

and a 20% improvement in energy 

efficiency from 2007 levels. 

19. The link between energy and climate 

change is most clearly demonstrated 

through Directive 2009/28/EC which 

seeks to promote the use of energy 

from renewable sources. Across the 

EU, it requires that 20% of energy 

consumed must be derived from 

renewable sources. Obviously, the basis 

for this Directive is not simply to reduce 

the emissions of greenhouse gases: 

there are ‘many benefits, including 

the utilisation of local energy sources, 

increased local security of energy 

supply, shorter transport distances, 

and reduced energy transmission 

losses. Such decentralisation also 

fosters community development 

and cohesion by providing income 

sources and creating jobs locally.’ 4 

That said, however, the Directive 

itself understandably recognises 

the correlative benefits for Member 

States seeking to attain their emission 

reduction targets. 

20. For the purposes of this article, this 

2009 Directive is particularly interesting 

because it advocates establishing 

mandatory national targets for the 

contributions of energy from renewable 

sources. In the case of the UK, the 

obligations, and if so, how ‘binding’ is 

that target in any event. 

21. The EU has recognised that another 

significant source of emissions 

which may be regulated on a pan- 

European level is transportation. 

Regulation (EC) No 443/2009 sets 

out emission performance standards 

for new passenger cars as part of the 

Community’s broader approach to 

reduce CO 2 

emissions from vehicles. 

Directive 2009/30/EC seeks to monitor 

and reduce greenhouse gas emissions 

through establishing environmental 

standards for fuel. 

22. This theme of the EU legislating 

and thus impacting on individual 

consumers is also evident in various 

Directives relating to energy usage. 

Directive 2012/27/EU, for example, 

establishes a framework for labelling 

and consumer information regarding 

energy consumption for energyrelated 

(including household) products. 

Directive 2010/31/EU seeks to improve 

the energy performance and efficiency 

of buildings. 

23. It makes sense, as part of this article, 

to mention also the central pieces of 

European legislation concerned with 

air quality: CO 2 

is not the only emission 

which has an environmental impact. 

14. These Directives go on to set out details 

of how the emission allowance trading 

market should operate. The 2009 

Directive explains that installations 

which carry out stipulated activities 

resulting in emissions must hold a 

permit. Member States are required 

to submit their proposed allocation 

plans to the European Commission. The 

programmes, with Member States 

then being required to present annual 

reports to the Commission of their 

emissions. Much of the rationale behind 

this Decision was to enable the EU to 

comply with its commitments under the 

Kyoto Protocol. 

national overall target for the share 

of energy from renewable sources by 

2020 is 15% (as compared with the 1.3% 

share of 2005). A point of contention 

amongst environmental lawyers is that 

this target, whilst it is characterised as 

4 Directive 2009/28/EC of 23 April 2009 on the 

promotion of the use of energy from renewable sources 

[2009] OJ L140/16, para (6). 

24. Directive 2001/81/EC sets the 

upper limits for Member States’ 

emissions of certain atmospheric 

pollutants (including sulphur dioxide, 

nitrogen oxides, and volatile organic 

compounds). This Directive is 

supplemented by Directive 2010/75/ 

EU which seeks to control and 

reduce the emissions from large 




combustion plants. This Industrial 

Emissions Directive, in much the same 

way as Directive 2009/29/EC (the 

emission reduction Directive outlined 

above), requires various installations 

undertaking specified industrial 

activities to operate in accordance 

with a permit which is issued by the 

Member State authorities. 

25. The general health impacts, as well as 

the environmental impacts, of improved 

air quality are clearly considered in 

Directive 2008/50/EC on ambient 

air quality and clear air for Europe. 

This 2008 Directive imposes limits for 

Member States for various pollutants 

and particulates in outdoor air. This 

Directive has self-evident implications 

on the UK, and it is well-publicised – for 

example in the ClientEarth judgment 

of the Supreme Court 5 – that in many 

urban areas these targets are not being 

met. 

Implications of the UK’s 

Exit from the EU 

26. Turning now to the implications for 

the UK of leaving the EU, it is again 

necessary to stress that much of what 

follows is unavoidably generalised. 

27. There is first the very obvious detriment 

to the UK that after it leaves the 

EU, then it will equally be unable to 

negotiate and seek to influence the EU’s 

approach to environmental regulation. 

This disadvantage is magnified when 

one considers that the UK will (perhaps) 

nevertheless remain obliged to meet 

certain targets established by the EU 

or by international treaties, such as 

(heretofore) the Kyoto Protocol. It would 

be a regrettable situation for the UK to 

be bound to meet various objectives 

but have no influence in the process 

determining how those targets should 

be achieved. It is also the case that 

the UK may be less inclined to adopt 

stringent and taxing targets for itself if 

there were not European pressures to 

do so. 

28. On the other side of the coin, if and 

when the UK were to leave the EU, 

then there is an argument that the EU’s 

climate change and energy policies 

would suffer. The UK has a recognised 

positive impact in steering EU policy 

in a more demanding, conscientious 

and sustainable direction. There is a 

worry that if the UK were to leave the 

negotiating table, then Member States 

for whom environmental concerns are 

subordinate to economic prosperity 

may come to the fore. This point is 

likely to be borne out in the context of 

ongoing UNFCCC negotiations: without 

the UK, the EU may be inclined to adopt 

a weakened stance, and similarly, the 

UK’s position is likely to be diminished. 

One of the defining justifications for 

the EU is that it is greater than the 

sum of its parts, and that argument 

is particularly prevalent on the global 

stage. 

29. It is submitted here that the UK is 

likely to want to continue being able 

trade within the EU emissions trading 

scheme so as to attain its obligations 

imposed by international treaties 

and agreements. For example, if the 

Paris Agreement is ratified, then the 

ambitious global targets will require 

exactly such an international response. 

30. There is a suggestion that if the UK were 

to leave the EU, it could nevertheless 

opt-in to the emissions trading scheme. 

suggestion is that the UK could do the 

same, thus preserving the commercial 

impetus underpinning continued 

climate change action in industry. This 

said, there is still the potential concern 

relating to how influential the UK would 

be in formulating EU ETS policy if it were 

no longer an EU Member State. 

31. Much the same argument can be 

raised with regard to the 2009 Directive 

promoting the use of renewable energy 

sources. This Directive envisages joint 

projects, with the common objective 

of increasing proportional energy 

production from renewable sources. 

These projects may be between 

Member States or entered into with 

third countries. Obviously, this latter 

point is worth noting because it could 

mitigate any disruptive effects arising 

from Brexit on long-term international 

projects. So long as the conditions for 

third party joint projects would be met, 

the Member States of the EU may not 

be deterred from entering into joint 

projects with the UK. 

32. There are also a number of arguments 

which suggest that Brexit might not 

be as damaging to the UK’s climate 

change and energy policies as is feared. 

The Climate Change Act 2008 is the 

flagship piece of national legislation 

on this issue, most significantly setting 

out a duty ‘to ensure that the net UK 

carbon account for the year 2050 

is at least 80% lower than the 1990 

baseline.’ 6 This legislative target is 

remarkably ambitious, and indicates 

that the UK’s national (and, therefore, 

individual) commitment to sustainable 

development is genuine and proactive. 

33. Further, Simon Moore at Policy 

Exchange raises the interesting 

argument that the UK, through being 

compelled to meet EU targets on 

investment in renewable energy 

sources, may in fact struggle to meet 

the decarbonisation target. 7 Meeting 

the renewable energy target may have a 

deleterious effect on the UK’s prospects 

to reduce its carbon account because 

it commits the bulk of the UK’s efforts 

and resources in one specific way, at 

the expense of encouraging broader 

innovation and investment in lowcarbon 

alternatives. 

Concluding Remarks 

34. The overwhelming majority (between 

80-90%) of the UK’s environmental 

legislation is derived from EU legislation, 

and so the potential impact of Brexit on 

climate change and energy policy in the 

UK is huge. 

35. This note has mapped the major 

pieces of EU legislation which concern 

specifically climate change and energy, 

and suggested potential (if chiefly 

generalised) impacts should a novote 

be delivered in the referendum. 

The chief impact of Brexit will, 

understandably, be confusion, and 

whilst it will be possible to resolve 

much of this uncertainty over the 

course of time through a combination 

of legislating and negotiating, this 

note questions whether any potential 

outcomes would be worth that 

confusion from an environmental 

and sustainability perspective. When 

considering climate change policy and 

energy policy, it seems that there would 

have been far more advantages to 

remaining within the EU. 

5 R (on the application of ClientEarth) v Secretary of State 

for the Environment, Food and Rural Affairs [2015] UKSC 

28. 

Iceland, Norway and Lichtenstein have 

each signed up to the scheme, and the 

6 Section 1, Climate Change Act 2008. 

7 S Moore, ‘2020 Hindsight: Does the renewable energy 

target help the UK decarbonise?’ Policy Exchange (2011, 

London). 




36. One cannot escape the fact that 

climate change and the finite nature 

of non-renewable energy sources are 

(at least) a pan-European problem. 

Further, it is true that acting on 

climate change, and the move toward 

sustainable energy sourcing, demand 

a holistic and collaborative approach, 

and for this reason the arguments 

for the UK staying in the EU were 

very strong. Indeed, in the context of 

the environment as a whole, the disbenefits 

of Brexit are writ large. 

Stephen Hockman QC and 

Benjamin Haseldine 

Brexit and UK Consumer Law 

Fred Philpott and Robin Kingham 

Stephen Hockman QC 

Barrister at Six Pump Court 

T: +44 (0) 20 7797 8400 

Email: stephenhockmanqc@6pumpcourt.co.uk 

Stephen Hockman QC has specialised in all forms of regulatory law for approximately the last 30 years. He is a leader 

of exceptionally high standing who has a stunningly broad environmental, health and safety and planning practice 

encompassing judicial review, inquiries, arbitration, civil claims and criminal prosecution and defence work. 

Benjamin Haseldine 

Paralegal at Total Compliance Limited 

Email: ben@totalcompliance.com 

Introduction 

The seismic shift in British politics signalled by the 

referendum decision on 23 June 2016 is likely to have farreaching 

legislative consequences in the UK. In the event 

that the new Conservative government negotiates a ‘clean 

break’ from the EU (i.e. an arrangement not involving 

membership of the EEA), the UK will be faced with the 

prospect of regulatory reform on an unprecedented scale. 

At present, most areas of domestic law are influenced to 

some extent by EU legislation and some areas are wholly 

determined by it. In the areas currently most influenced 

by EU law, a ‘clean break’ scenario would raise many 

questions. Should the law be kept as it is? If not, what will 

take its place? 




This article will consider the implications of 

a ‘clean break’ scenario on UK consumer 

law. By its very nature, consumer law 

affects more people more of the time than 

any other area of civil law. Beyond this, 

a consideration of UK consumer law is 

particularly relevant in the context of post- 

Brexit planning for two reasons. First, it is 

an area that is currently highly influenced 

by EU law and therefore serves as a good 

practical example of the sorts of challenges 

to be faced by lawmakers. Second, its broad 

scope, high public visibility, and control 

over a multitude of day-to-day transactions 

mean that swift legislative review will be 

necessary, as well as politically expedient 

for the government, following any ‘clean 

break.’ 

Although a temporary Act of Parliament 

incorporating all current EU regulation into 

domestic law could provide short-term 

stability while the process of reviewing the 

law is undertaken, decisions will eventually 

have to be made in many areas. A few of 

these areas are considered below. 

introduced into otherwise straightforward 

transactions. Rationalising this area should, 

therefore, be a priority. 

The heart of the distinction is also 

ideological: how should freedom of contract 

be reconciled with social paternalism? 

The authors do not advocate a particular 

approach, but in a ‘clean break’ scenario the 

UK will be afforded the first opportunity in 

many years to determine the right answer 

to that question. It is an opportunity that 

should be seized. 

Food Law 

The law relating to food (and in particular 

hygiene, safety, and the provision of 

information) is almost totally governed 

by EU law. The EU approach is marked 

by a dramatically different approach 

than was traditionally taken in the UK. In 

broad terms, this has led to a higher level 

of complexity and prescription than was 

previously the case. 

from giving such food away if the date has 

passed – regardless of the actual state of 

the food. Consumers, and in particular 

those who can ill-afford to do so, dispose 

of wholesome food on a huge scale even 

though many foods are safe well beyond 

their use-by dates. This is something which 

should be addressed. 

Consumer Credit 

The EU approach to consumer credit 

has undoubtedly complicated an area of 

law that should be consumer friendly. 

The Consumer Credit Directive excludes 

transactions over a certain sum of money 

and excludes credit secured on residential 

land (the latter now being dealt with by 

the Mortgage Credit Directive). EU law says 

little about consumer hire agreements 

and does not recognise hire-purchase. The 

result is consumer credit legislation where 

different regimes apply to the general 

bewilderment of many practitioners – let 

alone consumers. 

Trading Regulations 2008. The legislation 

has proven difficult to implement. 

Indeed, following the introduction of the 

2008 Regulations, Trading Standards 

enforcement virtually came to a halt for 

a number of years due to the inability 

to tackle unfamiliar concepts and vague 

language. 

Although much improvement has 

been made since the Regulations and 

the Directive remain problematic for 

practitioners and enforcers. What is a 

‘commercial practice’? Can it relate to an 

isolated incident or must it involve a pattern 

of behaviour? These questions – and 

the chain of litigation that resulted from 

them – were made necessary by the vague 

language introduced into UK law by the 

Directive. 

Previously, the Trade Descriptions Act 1968 

had provided a workable piece of legislation 

dealing with similar issues. Having been 

in force for some 40 years, a substantial 

body of case law had developed around 

the Act providing certainty to consumers 

Consumer Rights 

and Sale of Goods 

The traditional approach to Sale of 

Goods Law in British jurisdictions did not 

automatically confer particular rights 

on consumers as a class. However, as a 

result of the Consumer Rights Directive, 

the current position is that UK Sale 

of Goods legislation is starkly divided 

between consumers and non-consumers. 

Consumers are given enhanced rights and 

afforded greater protection by the courts 

than commercial parties. 

Has the EU approach been beneficial? 

Without empirical evidence, it is difficult to 

analyse the efficacy of the approach. On 

the other hand, complex and prescriptive 

regulation is necessarily burdensome for 

traders. Consequently, it is suggested that 

a study should be undertaken to determine 

the efficacy of current food safety and 

hygiene law compared with that in other 

lighter regulation jurisdictions. An informed 

decision can then be taken as to whether 

the current level of regulation justifies the 

burden it places on traders. 

A particular example of an area of food law 

that could benefit from urgent review – and 

To take an example, a consumer credit 

agreement or consumer hire agreement 

can fall within: (i) a regulatory regime dating 

from 1983 (and, if a bill of sale is involved, 

also from a regime introduced the century 

before last), (ii) the 2010 set of regulations 

where the Consumer Credit Directive 

applies, or (iii) the 2015 legislation intended 

to comply with the Mortgage Credit 

Directive. 

There is no need for such complexity. 

Following a ‘clean break’, the current system 

should be abandoned and replaced with a 

single new Act. 

and traders – as well as a rich source of 

jurisprudence to the courts – which no 

longer exists. In a ‘clean break’ scenario, 

legislators would be well served to contrast 

the language of the 1968 Act with that 

employed in the 2008 Regulations. 

Weights and Measures 

One topic that has consistently proven 

emotive with the public is the choice of 

unit. Indeed, it has already been reported 

that some butchers are now offering 

their customers the opportunity to buy 

in pounds and ounces. Although perhaps 

As practitioners in the area will know, 

dividing parties between consumers and 

non-consumers is often easier said than 

done. There will always be situations that 

fall somewhere between the two camps 

and categorisation can be difficult. In the 

worst instances, a degree of uncertainty is 

one which would have a pronounced effect 

– relates to durability. At present, EU law 

dictates the terms of durability markings 

placed on food, such as use-by dates. It is 

notorious how much perfectly edible food 

is routinely thrown away because of this. 

Furthermore, EU law prevents retailers 

Unfair Commercial 

Practices 

The Unfair Commercial Practices Directive 

was incorporated into domestic law by 

the Consumer Protection from Unfair 

not as pressing a concern as some others 

considered above, legislating in favour of 

imperial units of measurement over metric 

would present the government with an easy 

opportunity to win support from Brexiteers 

currently sceptical about the government’s 



commitment to the implementation of the 

referendum mandate. 

From a regulatory point of view, there 

would be little difficulty in permitting 

domestic traders (particularly those selling 

meat, fruit, and vegetables) to choose 

between imperial and metric units. Exports 

to the EU would, of course, continue to be 

marked in metric units in compliance with 

EU legislation. 

Conclusion 

The above are only a few examples of 

areas that will require consideration. 

There are many others which will fall to 

be considered in the event of a ‘clean 

break.’ Such an exercise in legislative 

reform is unprecedented in UK history 

and is naturally daunting to many as 

a result. However, it also presents an 

unprecedented opportunity to reform the 

law for the better. 

Fred Philpott 

Barristers at Gough Square Chambers 

T: ++44 (0) 20 7353 0924 

Email: fred.philpott@goughsq.co.uk 

Fred has been involved in consumer law since the Consumer Credit Act 1974 was passed. In addition to advisory work on 

consumer issues, he has appeared in a number of significant cases over the years including prices, advertising, food safety, 

franchise agreements, timeshare and timeshare credit, health and safety, product safety, weights and measures and trade 

descriptions (now unfair commercial practices). His consumer credit work has involved extensive drafting of regulated 

agreements under the various regulatory regimes under the 1974 Act, litigation on technical issues and issues such as the 

former extortionate credit bargain regime as well as representing creditors in licensing matters with the OFT (now the FCA) 

spanning some 35 years. 

http://www.lawyerissue.com 

Robin Kingham 

Barristers at Gough Square Chambers 

T: +44 (0) 20 7353 0924 

Email: obin.kingham@goughsq.co.uk 

Robin undertakes advisory, drafting, and court work in all of Chambers’ core practice areas. He has particular experience of 

banking and financial services, consumer credit, and general commercial litigation. He also maintains a specialist practice in 

regulatory crime. 

44 | LawyerIssue

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