Employment Law
“The UK will be free to do what it chooses to do regarding its employment law framework. In theory, it is able to make changes to it and to decrease or increase employment rights. It seems unlikely that there would be an overarching reform of existing employment law following the conclusion of the transition period: many EU derived laws are by choice “golden plated” by the UK and some key aspects of UK employment law are not derived from the EU (i.e. NMW). A key outstanding question relates to the extent to which UK courts and tribunals will remain subject to European rules and case law. As there are no immediately foreseeable or planned changes, there is little for companies to do in order to mitigate risks at this stage. The assumption, for the time being, is to plan staffing risks based on the current legal framework,” says Tania Tandon, Tandon Hildebrand

Dispute Resolution
“Under the current regime, there are European wide rules which govern how courts deal with disputes between parties of different member states. The rules principally regulate: the member state in which the cross border litigation should be determined, and the enforcement of a judgment. After 31 December the relevant EU regulations will no longer apply. This will mean that a UK party and an EU party who are in dispute and want to resolve this through the courts would be subject to different and more cumbersome rules and judgments may be less straightforward to enforce. It is expected that the UK will accede to a treaty (the Lugano Convention) which to all intents and purposes will replicate the current position. However, that accession has not yet been agreed and, as with the UK withdrawal arrangements more generally, time is running short. Even if the UK accedes to the Lugano Convention, in one important respect it will not provide the same uniformity of approach that the current EU rules provide. Where disputes are fiercely fought, one tactic a party can adopt is to slow down a dispute by counterattacking an opponent in a court of a different member state. The Lugano Convention does not provide a ready method of defeating this tactic in the way that the current rules do.

So what can organisations do to mitigate the risks? If the UK does accede to Lugano, most ‘normal’ commercial disputes which are resolved through the courts will be largely unaffected. However, Lugano accession remains uncertain. Organisations entering into contracts today may want to avoid the risk that the UK ends up without a harmonising convention for litigation. And even with Lugano, if parties have a bitter dispute, the system for resolution can be disrupted by a party intent on causing havoc. One solution is to provide in commercial contracts that arbitration will be the method used for resolving disputes. This will be unaffected by Brexit. The recognition and enforcement of arbitral awards is governed by the New York Convention. Under that treaty arbitral awards are widely recognised (for enforcement purposes) across the globe. Parties can select the ‘seat’ of the arbitration and choose their arbitrators. Unlike court proceedings, arbitration is confidential. However, they should bear in mind that arbitration is often more costly than court proceedings and that the outcome can be more unpredictable than litigating under a well-established judicial system which follows precedent such as that which applies in England,” says Geraldine Elliott, RPC