Will it be necessary to change the law in contracts, post Brexit
English law is used globally for the vast majority of commercial contracts, regardless of whether there is a direct connection to England and Wales in the deal. There are many reasons for this. Historically the wide extent of the British Empire introduced English jurisprudence to the far corners of the globe and due to its perceived business-friendly merits, it is still retained today. It seems the Brexit factor is unlikely to be a consideration as the reasons that English law is still chosen are largely unaffected by Brexit.
Retaining English law will ensure that the contractual terms of the contracts will still be held. Also, the contractual rights to pursue debts and enforce securities will remain, as well as disclaimers and non-reliance clauses. The principles of good faith and implied terms may still be able to be drawn on.
Rome 1 and Rome 11 and the EU regulations on governing law require Member State courts to respect the choice of law in commercial contracts even if the law is not that of a Member State. Therefore Brexit should not cause the Member States to act any differently. Also, the UK Government has already confirmed that it will implement Rome 1 and Rome 11 into domestic law on which will mean that governing law both in Europe Member States and in Britain will be closely aligned much as pre-Brexit.
There will be some Brexit impact felt after the break, this may manifest itself most keenly in regulatory issues but that remains to be seen. As the negotiations have still some way to go and consensus within the UK Government is not given, there is scope for many more changes. Theresa May’s new plan is being described as both “the best of both worlds” and “completely unworkable” in the British press. This just serves to highlight how much work has yet to be done before the viability of cross-border business can be assessed.
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