A coffee with Aidan Robertson
Paul Jonson
29/09/2016

Earlier this month, we held our annual In House Lawyers Conference in partnership with BCL.
We had a fantastic day filled with speakers and workshops that challenged us to think differently about familiar topics and asked us to consider the practical impact of major legislative changes on the sector and society at large.
Our first speaker, Aidan Robertson QC of Brick Court Chambers, conducted a fascinating and informative discussion on Brexit. Aidan covered key questions such as the timetable for withdrawal, what laws and trade deals will replace EU law and the practical consequences for businesses in enforcement of rights. His talk helped to breakdown the ins and outs of the complex piece of legislation that is likely to have a dramatic effect on the way we trade goods, capital and services.
After the talk, we were keen to find out more and share his insights with a wider audience, so we grabbed him for a quick coffee and a chat. Here’s what he had to say:
Hi Aidan. An interesting talk! Could you tell us a little more about what you consider to be the realistic timescales of Brexit and what could be the legal implications of this?
I would expect the government to trigger the Brexit negotiations under Article 50 of the Treaty on European Union early in 2017, meaning that the UK would leave the EU in the first quarter of 2019. It seems to me that the EU Parliament Elections in May 2019 provide an obvious deadline by which the UK should no longer be an EU member.

This is subject to judicial review challenges in the High Court in Belfast and London and a likely Supreme Court hearing before Christmas as to whether Parliamentary approval to trigger Article 50 is needed – in my view, it is not.
What do you anticipate will be the biggest issues the UK will face in the wake of Brexit?
I expect the EU and UK to reach a workable agreement on trade in goods, capital and services, although the latter issue poses some challenges, in particular in the field of financial services.

In my opinion, the biggest issue is not so much the substantive rules on trade post-Brexit, but the enforcement of those rules. Unlike EU law, which has direct effect and so the full range of legal remedies are available in every national court throughout the EU, the new trade deal will operate at the level of international law. This means that it will not have direct effect (see Polydor v Harlequin Records 1982) and so any remedies will have to depend on what the trade deal provides.

It may involve claims for compensation under Investor to State Dispute Settlement provisions, but these involve arbitration rather than court proceedings and are unlikely to provide anything as effective as the current remedies under EU law.
How did your audience react to the subject of your talk? What kinds of questions did it raise?
Issues around Brexit are of relevance to any business trading with the rest of the EU, so there was a good response from a wide range of audience members.

One question I was asked was what the position would be with claims for breach of EU law where the events took place before Brexit but the claim was not brought until afterwards. I explained that UK limitation periods for civil claims (six years in England, Wales and Northern Ireland, five years in Scotland) would enable claims to be brought after Brexit. The position would be different for challenges to government action as being inconsistent with EU law, because the judicial review time limit is much shorter – claims must be brought promptly and in any event within 3 months.

Importantly, post-Brexit, English courts will have to decide on issues of EU law for themselves, as the option of making a preliminary reference to the Court of Justice of the European Union for an advisory ruling currently provided for by Article 267 of the Treaty of the Functioning of the European Union will no longer be open.
What did you think of this year’s IHL? How important are conferences like this?
This was an excellent opportunity for in-house lawyers to gather and discuss issues of mutual interest, both on ‘big picture’ matters such as Brexit and also on the more ‘hands on’ issues covered in other sessions. I was impressed by the high turnout for the conference, which was a practical demonstration of its importance.
Thanks Aidan – hope to see you again next year.

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