While aspects of Brexit are still undecided, all law firms need to begin preparing for it with a proactive approach and diligent planning. A vital part of this should include impact assessments for commercial contracts.
In this current state of uncertainty, it can seem like there are an endless amount of risks to consider. The best practice, therefore, should be to begin contingency planning as soon as possible. For current and future commercial contracts, understanding the exact obligations is crucial to assess the impact of Brexit and formulate any risk mitigation strategies.
In this article, we discuss some of the main contractual terms that could be affected by Brexit, and how legal tech could help with the transition.
References to EU Legislation
Any contract where parties have warrantied compliance with EU rules could prove problematic, as most EU legislation is likely to cease in the UK.
At the time of writing, the UK intended to maintain any UK law that was originally introduced to ensure EU legislation compliance. However, problems may still arise in certain sectors, including Financial Services as they are heavily regulated at the EU level.
To restrict these initial issues, Parliament passed the UK Withdrawal Act 2018 (the ‘Great Repeal Bill’), which converts any existing EU legislation into domestic law ‘wherever practicable’. This Act should ensure some initial post-Brexit continuity in the operation of commercial contracts containing EU legislation references – any such obligations will continue to operate in the same way under domestic law.
However, uncertainties may still arise in circumstances where any converted EU law references a non-UK authority as an arbiter of the rules established in the contract. These responsibilities could be assumed to be adopted by the equivalent entity in the UK, but this is not always practicable or possible.
It is also worth noting that any EU legislation adopted under the UK Withdrawal Act is likely to be amended post-Brexit.
Many types of commercial contracts (including Service Agreements, Distribution Agreements or License Agreements) are likely to contain specific territorial restrictions. For such provisions, the UK may no longer be included if it is not expressly mentioned.
Additionally, any reference to ‘the EU’ or ‘the member states from time to time’ will no longer cover the UK. This may mean that the rights and obligations of one party are not the same as when the contract was drafted.
It could even mean that the parties no longer feel that the contract is economically viable or produces a desirable outcome. In these circumstances, parties might be advised to review their definitions to see if Brexit may fit within the parameters of any Force Majeure clauses.
Ultimately, any post-Brexit interpretation of territorial restrictions will be based on the construction of the agreement. However, businesses can avoid this uncertainty by reviewing their contracts now, to understand their position better.
Preparing for Brexit
Knowing exactly what your commercial contracts contain is vital to ensure you are best placed after Brexit. However, with potentially hundreds or thousands of documents, reviewing each one manually can be an incredibly time consuming and costly exercise.
Using Summize, you can bypass this problem – instantly review and pull key points from your contracts. Using industry-leading technology, Summize will read any contract and provide a summary in an interactive format.
We understand the difficulties of searching individually through vast amounts of complex contracts for specific information. Therefore, our ‘Clause Builder’ function allows you to search through all of your contracts at once for customisable contract terms.
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