Category Archives: Brexit

English lawyers and law students should be getting to grips with a whole new area of English law: Retained EU law. In this decision, the Court of Appeal explains all about Retained EU law and provides a roadmap for anyone having to consider it. The ruling also explains a rather unusual provision in the EU (Future Relationship) Act 2020 which can modify automatically English law that is not consistent with the EU/UK Trade & Cooperation Agreement (TCA): Lipton & anr v BA City Flyer Ltd [2021] EWCA Civ 454

This article focusses on the Retained EU law aspects of the decision rather than the detail of the underlying dispute, but for context the claimant, Mr Lipton, claimed compensation for a cancelled flight from Milan to London under an EU regulation, Regulation (EC) 261/2004. The airline claimed that no compensation was due as the extraordinary circumstances exception applied due to the captains illness. The airline lost and was ordered to pay compensation.

Green LJ took the opportunity to explain how the English court should approach Retained EU law and how English law can automatically be modified by a very broad provision in the EU (Future Relationship) Act 2020 (EUFRA). Based on Green LJs nine basic principles (and slightly expanded for ease of understanding):

This final limb is perhaps the most striking. It reflects s29 EUFRA.

Section 29 EUFRA modifies existing English law insofar as it is not the same as the TCA. Modify includes amend, repeal and revoke. Green LJ called s29 a sweeping up mechanism.

Green LJ explained that s29 is not just a principle of interpretation. Section 29 has the ability to modify automatically existing English law where there is inconsistency, daylight, lacuna between the existing English law and the TCA.

There are some limitations to s29. For example, it only applies to existing domestic law. This is defined to mean (in summary) English enactments that were passed or made before, and any other domestic law as it has effect on, the coming into force of the TCA. It would therefore appear not to apply to any new enactment passed after this date.

Green LJ refers, in addition, to two statutory clarifications:

Anyone needing to look at Retained EU law will want to refer to Green LJs judgment to cross-check their analysis. It is likely that many judges will also be referring to it, so advocates may want to order their submissions accordingly.

The ruling reminds us how the terms of the TCA can impact on private disputes where the subject matter of the dispute overlaps with the subject matter of the TCA. The TCA is wide-ranging. It covers many areas in which we see commercial disputes for example public procurement, energy, IP, and transport.

The impact of an overlap could be most acute where the broad sweeping-up provision in s29 is engaged. It is not a surprise to see such a provision, but it has the capacity to introduce uncertainty and argument. If s29 applies, in order for a private party to know what English law says, it demands that the party interpret the UKs obligations in the TCA (some of which are phrased in extremely broad terms), determine whether existing English law is the same, and if not, read across the TCA into the existing English law. It is not hard to imagine disputing parties reaching different conclusions when conducting that exercise.

It is difficult to predict exactly how often we will see s29 apply, although we may see parties running arguments that it should, including for purely tactical reasons in some cases. It should only apply where existing English law is not consistent with the TCA. To the extent that the TCA is based on shared ideals which underpin existing EU law, in many cases it may be possible to assume that existing English law as at the end of last year was largely compliant with the TCA. The scope of application of s29 may therefore be slim.

Finally, the events in this case occurred in 2018, while Mr Liptons claim originally commenced around 2019. As the events took place prior to the end of the Brexit transition period it is not entirely clear why the Court of Appeal decided to look at Retained EU law, rather than just apply the original EU regulation. However, this does not detract from useful principles in Green LJs judgment, even if they are obiter.

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A lesson on English law post-Brexit from the Court of Appeal - JD Supra

Last week, the UNs refugee agency, UNHCR, released a rare and strongly worded commentary on the UK governments proposed plan to overhaul the countrys asylum system.

The agency expressed concern that the plan, if implemented as it stands, will undermine the 1951 [Refugee] Convention and international protection system, not just in the UK, but globally.

If states, like the UK, that receive a comparatively small fraction of the worlds asylum seekers and refugees appear poised to renege on their commitments, the system is weakened globally, the policy note added.

Over the past year, widely televised images of dinghies carrying asylum seekers arriving on English beaches have stoked a sense of crisis over irregular migration in the UK, setting the stage for Interior Minister Priti Patel at the end of March to introduce a significant overhaul of the countrys asylum rules involving more than 40 suggested changes to the existing system.

The central principle of the new plan which says it aims to break the business model of smugglers by privileging asylum seekers who arrive through legal channels while creating barriers to protection for those who arrive irregularly is fairness, according to Patel.

But rights groups and asylum advocates say the approach is more about leveraging the perception of a crisis to build a severely restrictive asylum system for the post-Brexit era, and that the emphasis on legal routes is just a smokescreen. They say it follows in the footsteps of countries like Denmark and Australia, which have implemented harsh policies to try to reduce to zero the number of asylum seekers irregularly entering their territory to claim protection.

Smugglers exist because of hostile policies like these.

There are no regular routes [to the UK], Gulwali Passarlay, a 26-year-old Afghan refugee and author who arrived in the UK as an unaccompanied minor 13 years ago, told The New Humanitarian.

Smugglers exist because of hostile policies like these, Passarlay continued. Now, women and children will be forced to make these risky journeys because the government is restricting family reunification, and smugglers will tell people not to claim asylum when they get here because the government will punish them if they do.

In 2019, the UK with a population of around 66 million received just over 35,700 asylum applications, placing it 17th out of 28 countries in the EU at the time in terms of applications per capita. In comparison, Germany received more than 142,000 first time applications, France received more than 138,000, and Spain received just over 115,000.

Last year, despite the uptick in people crossing the Channel by boat, the number of asylum applications filed in the UK actually fell to 29,456, as fewer people seeking protection arrived by air due to COVID-19-related travel restrictions.

Last week, a brief public consultation process on the proposals ended, and in the coming months a draft bill will be brought to parliament where the governing Conservative Party holds a sizeable overall majority for consideration. As the debate over the proposed overhaul intensifies, heres a look at some of the key talking points.

Last year, nearly 8,500 asylum seekers crossed from France to the UK by boat, compared to around 1,900 in 2019. So far this year, the number stands at more than 1,850 people.

The majority of asylum seekers who arrived in the UK in 2020 were from Iran, Albania, Iraq, and Eritrea. Family and community links as well as English language skills are frequently cited reasons for choosing the UK, often hastened by harsh asylum measures in other parts of Europe.

For example, critics say a chronic housing shortage for asylum seekers in France is part of an intentional strategy by authorities aimed at dissuading people from seeking protection in the country. It has led to a cycle of migrant camps being erected and demolished in the area around the French port city of Calais, pushing increasing numbers to attempt to cross the Channel.

Prior to 2020, asylum seekers attempting to enter the UK from northern France primarily tried to stow away in lorries crossing the Channel by ferry or through the Eurotunnel. But the pandemic has led to a slowdown in traffic, pushing people toward alternative routes.

The UK has also invested at least 114 million ($159 million) since 2015 in surveillance technology and border control equipment including razor-wire fences, CCTV, and infra-red detection technology in northern France to prevent and detect stowaways.

In testimony to a parliamentary committee in September 2020, Dan Mahoney, an ex-Marine appointed Clandestine Channel Threat Commander to tackle irregular crossings, said the measures against stowaways had contributed to the rise in attempted journeys by boat.

After formally withdrawing from the EU on 1 January this year, the UK is in the process of rewriting rules and regulations previously governed by EU-wide laws and agreements, including those related to immigraton and asylum. Against the backdrop of the perceived crisis in the Channel, the new asylum plan is part of that process.

Patel says the existing asylum system is "collapsing under the pressure of the parallel illegal routes and should be based on need, not the ability to pay people smugglers.

The new plan aims to encourage asylum seekers to use safe and legal routes by offering more integration support and permanent legal status to people resettled through official programmes. At the same time, it aims to deter irregular entry by denying people who do so the automatic right to asylum, making it easier to remove them to safe countries they passed through en route to the UK. Those who cannot be immediately removed may be granted temporary protected status with fewer rights than refugees who enter through official channels, and still regularly reassessed for removal.

They are saying that the only genuine refugee is one who uses our routes and we will punish those who come in a way that we dont approve of.

For the first time, says Patel in a foreword of the New Plan for Immigration, whether you enter the UK legally or illegally will have an impact on how your asylum claim progresses and on your status in the UK, if that claim is successful.

But UNHCR, in its commentary on the proposed changes, said: Attempts to relieve pressure on the UK asylum system by narrowing access to it for those arriving irregularly are neither effective nor sustainable ways to address the systems current weaknesses.

Chai Patel, legal policy director at the Joint Council for the Welfare of Immigrants (JCWI), went further. The wording [of the plan] is worrying and vague, he told The New Humanitarian. They are saying that the only genuine refugee is one who uses our routes and we will punish those who come in a way that we dont approve of.

Core elements of the plan have already run into roadblocks, with EU governments saying they will not sign bilateral agreements that would allow the UK return asylum seekers to European countries. Previously, returns were governed by the EUs Dublin regulation, which the UK is no longer a party to.

Despite the new plans emphasis on safe and legal routes, there are very few options for asylum seekers to reach the UK without embarking on irregular journeys.

Since 2015, the UK has resettled around 25,000 people primarily refugees from the Syrian conflict and welcomed an additional 29,000 close relatives of refugees through family reunification.

A new global resettlement scheme to settle around 5,000 refugees annually was meant to start in 2020, replacing an amalgamation of ad hoc programmes. But the government suspended resettlement due to the pandemic in March, and it is yet to say when it will resume.

Technically, the UK is one of the leading resettlement countries in the world, but only because the bar is set very low, according to rights advocates. In 2019 the year before COVID-19 interrupted efforts fewer than 64,000 refugees were resettled globally (including around 5,700 to the UK) through UNHCR; out of 1.4 million estimated to be in urgent need.

Since Brexit, EU regulations governing family reunifications have also been replaced by far more restrictive national immigration rules, and child refugees in the UK can no longer apply for their parents or siblings over 18 years old to join them in the country.Charities have accused the government of leaving vulnerable refugees strandedin Italy and Greece after transfers agreed to pre-Brexit were delayed due to the pandemic. They have now, apparently, been discontinued.

Beth Gardiner-Smith, CEO of Safe Passage International, an NGO that assists family reunifications, told The New Humanitarian that 95 percent of the cases they are involved with would not qualify under the UK domestic legislation.

The restrictive criteria mean the majority of children are not eligible under the rules as they stand. Until [the rules change], they will continue to be forced to risk dangerous journeys on dinghies or in the back of lorries, Gardiner-Smith said.

Meanwhile, rights advocates are concerned that the distinction being made by the government between people travelling regularly and irregularly is creating a false distinction about who is legally entitled to protection. Resettlement shouldnt replace the countrys obligations to the Refugee Convention, said Patel, of JCWI. The Refugee Convention stipulates that people are entitled to have their protection claims heard regardless of how they enter a country.

In September 2020, in response to apparent pandemic-related pressures on the housing system for asylum seekers, the UK Home Office announced that two threadbare former military barracks would be used as accommodation.

Within months they became a target for far-right protests, a COVID-19 outbreak across January and February infected nearly half of the 400 residents, and a large fire destroyed part of one facility. A former immigration minister suggested the barracks were deployed for deterrent purposes, to make the UK seem as difficult and inhospitable as possible.A highly critical report by inspectors noted serious mental health needs and slammed the site as filthy, decrepit, and unfit for habitation.

Bella Sankey, director of the NGO Detention Action, told The New Humanitarian that the proposals open the door to further use of squalid accommodation or even detention for the long term.

At least in prison you have a release date.

Without bilateral arrangements with other countries to take people back, which this whole system hinges on, an increasing number of people will be warehoused in deeply inappropriate, inhumane facilities, Sankey said.

The UK remains the only country in Europe without a statutory time limit on immigration detention.

Some of our clients have been detained for years, even when it was clear that they could not be removed, Sankey said. Detainees describe it as mental torture, most citing the indefinite nature as the key thing that makes experience so unbearable and scarring. At least in prison you have a release date.

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What's behind the UK's harsh post-Brexit asylum overhaul? - The New Humanitarian

Britains economy is on track to suffer more than 700bn of lost output caused by Covid-19, made worse by the governments mishandling of the health emergency and Brexit, one of the UKs leading economics thinktanks has warned.

The National Institute of Economic and Social Research (NIESR) said the UK was facing worse permanent damage than other rich nations due to a poor Covid-19 response from Boris Johnsons government.

Despite an improving growth outlook thanks to rapid progress with the Covid-19 vaccination programme, it said the scale of the UKs economic collapse last year the worst annual performance for 300 years meant Britain was further behind other major economies such as the US and Germany.

The UKs oldest independent economic research institute said the level of GDP was on track to be almost 4% lower in 2025 than it would have been without the pandemic. Equivalent to 1,350 per person a year, it said the cumulative loss of economic output would be worth 727bn over the five-year period.

While all countries have seen downgrades in their economic outlooks, those which have handled Covid-19 well are likely to find their long-term growth prospects downgraded by less, it said.

In a critical report for the government, NIESR said a decade of austerity-driven cuts overseen by the Conservatives had left the UKs health and social care capacity in a weak state as the pandemic struck.

Highlighting research showing the UK had among the lowest numbers of hospital beds and doctors per person among advanced nations, it said: Too little spending previously is likely to have contributed to 2020s high Covid-19 mortality rates.

The UK economy shrank by 9.8% last year, the worst performance in the G7, as the government delayed the launch of lockdown and took longer to relax measures, as well as due to higher rates of social spending in the UK than other nations.

However, NIESR said improvements in public health prospects from rapid progress administering the coronavirus vaccine and the lifting of lockdown measures would support a recovery in consumer confidence and a strong rebound in economic activity this summer.

The thinktank said it expected the economy to grow by 5.7% this year and to recover its pre-pandemic level at the end of 2022, in a sharp upgrade from its previous estimates for growth of 3.4%. It is however significantly below forecasts from the Bank of England for a recovery to pre-crisis levels by the end of this year, with growth of 7.25% in 2021 the fastest expansion since the second world war.

It said the UKs open economy would suffer from a lingering impact on world trade caused by the pandemic, while remaining negative consequences of Brexit would also have an impact.

Dr Hande Kk, deputy director at NIESR, said: Beyond short-term optimism, the outlook for the UK economy is less certain given the economic and social challenges that existed before the pandemic. Our analysis at sectoral, regional, and household level shows that despite the rhetoric about building back better existing inequalities could be exacerbated by the pandemic and an uneven recovery.

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UK economy to suffer 700bn output loss due to Covid and Brexit, thinktank warns - The Guardian

The uneasy rumblings in the media recently on whether the UK would be welcomed back by the European Union (EU) into the Lugano Convention family were confirmed on 4 May 2021, when the European Commission issued its 'Communication from the Commission to the European Parliament and the Council'[1] with its assessment on the application of the UK to accede to the 2007 Lugano Convention on the jurisdiction and recognition and enforcement of judgments (Lugano Convention). It recommended that the EU should not give its consent to UK accession. This communication has been met with disappointment by the legal profession[2] and characterised by the media as a political decision, rather than one based on common sense. However, there is room for hope this is not quite the last chapter in the saga of the EU/UK relationship in the area of choice of court agreements, jurisdiction and judgments.

What reasons does the Commission give for its stance?

The Commission's four-page communication sets out its analysis as to (i) the nature of the Lugano Convention, and (ii) the international framework for cooperation with third countries. Here are the key points from the Commission's conclusions.

What does this mean for finance transactions in practice?

The key issue to remember is that the Hague Convention applies to exclusive jurisdiction clauses where parties choose the court of one jurisdiction to determine the outcome of a dispute.

There are still some differing views on whether an asymmetric jurisdiction clause, typical in finance documentation (usually restricting the borrower to one court while giving the lender more scope to determine in which court to commence proceedings), can be classed as an 'exclusive' jurisdiction clause. However, this issue is not a new one and certainly existed prior to the end of the Brexit implementation period on 31 December 2020. Discussions on the recognition of such clauses are slowly playing out in the courts in a handful of cases under the Recast Brussels Regulation.[3] (For a reminder see our blog post "'Trade' and 'Cooperation' Buzzwords for life beyond Brexit", 11 January 2021 on Talking Trade Finance).

As always, parties should carry on analysing the dispute resolution options available to them, which may include the courts, arbitration or mediation. For now, we should assume the Hague Convention is the applicable international treaty for its contracting states, including the UK and the EU member states, and parties should consider carefully whether a one-way (asymmetric) or two-way exclusive jurisdiction clause is appropriate on a case-by-case basis.

We will be keeping an eye on the outcome of EU member states' vote to see if the EU will formally consent to the application of the UK to accede to the Lugano Convention. Let us hope that the politicians can see past politics to the businesses and individuals who may need to rely on smooth judicial cooperation. Whether the UK successfully accedes to the Lugano Convention or not, we will be looking out as the UK expands into further free trade agreements or bilateral agreements on jurisdiction and judgments, which will also be key for international trade and dispute resolution.

What does the Commission's recommendation mean for the UK?

It is helpful to consider the Commission's recommendation in context alongside the current position under the Hague Convention.

So, the Hague Convention remains the treaty to regulate judicial cooperation between the UK and any EU member state, and the EU and each of the other contracting parties and any which come on board. It gives protection to choice of court agreements in civil and commercial matters, and any judgment would be recognised and enforceable in another contracting state.

What has to happen now at the EU level for the UK to join the Lugano Convention?

While the Commission's Communication is a formal recommendation to the European Parliament and Council, it is only one part of the process in acquiring the EU's consent. Unlike the Hague Convention, unanimous consent of all contracting parties to the Lugano Convention is needed for a new state to accede. So, formal consent of the EU is required. Of the other contacting parties, Switzerland and Iceland both formally consented in February and March respectively this year, and Norway intends to support the application.

The final decision will be taken by the Council, which will form the decision of the EU. This is where the EU member states have their say, taking into account the views of the 27 national governments, which should hopefully consider the views of the legal profession. Media reports suggest that many EU member states are in favour of the UKs application, with only one or two larger member states sharing the view of the Commission, however, nothing is set in stone until there is a vote at Council level. Unanimity of EU member states (in the vote at EU level) is not required as the issue is one that needs a qualified majority. So, as yet the final position still lies in the hands of the EU member states.[6] If there is formal consent from the EU and other contracting parties, then the UK would accede to the Lugano Convention within three months.

Clearly, if this does not happen then we carry on as we are, with English law as a recognised and practical system of law for international and domestic financial transactions, using the Hague Convention to recognise choice of law agreements and recognition and enforcement of judgments between the EU member states and the UK. Trade and international finance transactions stretch further afield than the EU and EFTA, so in analysing dispute resolution options for each case, we will be looking not just at the Hague Convention but also for the development of any new UK bilateral treaties on jurisdiction and judgments.

[1] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=COM:2021:222:FIN&qid=1620139046110&from=EN

[2] "Disappointment as EU commission rebuffs UK accession to Lugano Convention" I. Stephanie Boyce, President of The Law Society of England and Wales, 5 May 2021.

[3] Regulation (EU) 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).

[4] HCCH status table 6 May 2021 Convention of 30 June 2005 on Choice of Court Agreements.

[5] HCCH status table 6 May 2021 Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

[6] Art 218 Treaty on the Functioning of the European Union.

Continued here:

Leaving Lugano: Is this the last chapter in the Brexit saga on jurisdiction and judgments? Oui ou Non? - JD Supra

One can read too much into the Conservative partys astounding victory at the byelection in Hartlepool, a deprived port town seat in north-east England. But it is rare that a government wins such contests, especially when it has been in power for 11 years and when the seat had been the oppositions for decades. Now the town with the highest unemployment rate in the country has a Tory MP. This makes for a significant moment. The result represents the first fruits of Boris Johnsons political strategy, which rests on consolidating the 2016 leave vote and using the state to direct cash and jobs to the parts of rust belt England that voted overwhelmingly for Brexit.

Labour might argue that Super Thursday was about much more than a single constituency. Elsewhere, devolved and local governments were being chosen. Yet in Scotland, Labour is being steamrolled by the nationalists. The party is clinging on in Wales. But to win power it needs to be competitive in England. At the time of writing, English local government elections seem to point to a revival in voting for the Greens and Liberal Democrats, eating into Labours support. This spells real trouble for Sir Keir Starmer, who could be caught in a pincer movement, losing votes on the left and the right. There are about 20 or so safe Labour seats, including those of Ed Miliband and Yvette Cooper, where the combined 2019 Brexit and Tory party vote would easily overtake the sitting MP.

The answer in the short-term must be for Labour to change course rather than make the captain walk the plank. Sir Keir has only been in his post for a year. But he wont take responsibility for the terrible performance by sacking a few frontbenchers. It would be a mistake to double down on a vacuous strategy that has not worked. Labour requires an economic programme big enough to cut through and offer hope. Sir Keir should jettison policies that appear to judge the voters he courts. He needs a new vocabulary to persuade the traditional working class that Labour stands for their interests and understands their concerns. Without it he cannot hope to build a broad enough electoral coalition to win power.

Benjamin Disraeli, it was said, saw the Conservative voter in the working man just as the sculptor sees the angel imprisoned in a block of marble. Disraelis strategy took time to pay off, but it did so handsomely when millions of working-class Britons cast their votes for the Tories in 19th-century Britain. Mr Johnson is shaping up to be Disraelis political heir. Like the predecessor, Mr Johnson is seen as witty but unprincipled. He could not decide if he is pro-greed or against inequality. He slipped between backing capitalism and telling it where to go.

This woeful lack of consistency is being resolved slowly by Brexit. Mr Johnson has been forced to discover and explain what he stands for. The public are giving him the benefit of the doubt for the moment. Sir Keir has moved from leading the remain faction in the Labour party to voting for Mr Johnsons Brexit deal. Yet he is still unable to say how he would make Britains exit from the EU a success. Until Sir Keir can do so, it is difficult to see how he will form a government anytime soon.

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The Guardian view on Boris Johnsons win: Brexit is remaking politics - The Guardian

At the State Opening of Parliament, the Queen outlined a number of areas the Government is planning to alter legislation following Brexit. The Queen's speech is the first since the UK left the EU in January 2020.

Addressing MPs and peers in the House of Lords, Her Majesty explained the Government's legislative programme for the next 12 months.

Work has been underway over the last year to build a reform programme to provide new opportunities for growth, to slash bureaucracy, and bolster workers rights and animal welfare standards.

While some Brexit legislation has been passed since leaving the bloc, including the EU trade deal, this is the first time plans have been formally set out.

Addressing Parliament, the Queen said: "My Governments priority is to deliver a national recovery from the pandemic that makes the United Kingdom stronger, healthier and more prosperous than before.

READ MORE ON OUR BREXIT LIVE BLOG

"To achieve this, my Government will level up opportunities across all parts of the United Kingdom, supporting jobs, businesses and economic growth and addressing the impact of the pandemic on public services."

In total, plans for 25 new Bills were announced, with over a quarter relating to Brexit.

The seven new pieces of Brexit legislation are:

READ MORE:Michel Barnier claims Brexit Britain acted like buccaneers in Jersey

Ministers have been eager to stress they intend to use the UK's freedom from Brussels' rules to help with Britain's bounce back from the pandemic.

Bureaucratic EU red tape will be scrapped, and new international markets for trade will be opened to help with the economic recovery.

Outlining the plans to make the most of Brexit, the Queen said: "Measures will be introduced to ensure that support for businesses reflects the United Kingdoms strategic interests and drives economic growth.

"Laws will simplify procurement in the public sector.

"Eight new Freeports will create hubs for trade and help regenerate communities.

"My Government will ensure that the public finances are returned to a sustainable path once the economic recovery is secure."

While the speech is delivered by the Queen, it is written by ministers.

The speech was signed off by the Cabinet at a meeting yesterday before being sent for Her Majesty to practice ahead of today.

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Brexit boom starts now: SEVEN new laws announced to exploit UK's freedom from EU - Daily Express

Yachting Monthly experts help you unravel what the new regulations post-Brexit mean for UK and EU sailors

What are the Brexit VAT implications of keeping my boat in France and the UK?

We want to buy a secondhand boat that is currently registered and located in France, and owned by a EU national.

If we bring it into the UK and register it here, we will have to pay VAT on the import, even though it is already Value Added Tax (VAT) paid in the EU.

Ideally we would like to keep the boat in the UK throughout the sailing season, returning to France for servicing and for winter storage.

If we were to keep it registered in France, returning from the UK to France for servicing, would that mean it would not be liable for UK VAT?

If so, how long would we be able to keep it in the UK before it became UK VAT liable?

How long would French customs allow the boat to be kept out of the EU before it became liable for EU VAT?

Tasha Green

Answer

The chair of the Cruising Associations Regulations & Technical Service group, Robin Baron responds:

Tashas plan to toggle between France and the UK does not work well from a VAT perspective for this particular vessel.

Assuming that VAT was paid upon first sale by the manufacturer within an EU country then the boat is VAT paid in the EU but not the UK.

If Tasha is resident in the UK then UK VAT arises as soon as the boat enters the UK.

Continues below

Keeping a boat in Europe has offered easy adventure and warmer climates, but as regulations after Brexit begin to take

Marine organisations in the UK and EU have come together to release guidance on the EU VAT status of second

Yachting Monthly experts help you unravel what the new regulations post-Brexit mean for UK and EU sailors

Boat owners, whose vessels were in the EU at the end of the Brexit transition period, now have until 30

It would be calculated on the current value of the boat at the date of import.

Robin Baron is chair of the Cruising Associations Regulations and Technical Services group. Credit: Robin Baron

Temporary admission into the UK is not available for UK residents.

There are no exceptions for servicing and maintenance unless the boatyard has a separate customs secure area; in the UK very few do.

In relation to France or other EU countries you should be able to claim Returned Goods Relief (RGR) upon the boats return to the EU subject to meeting the following conditions:

(a) during its period of export, the vessel must not have had more than running repairs to it that do not increase its value;(b) the goods must be returned to the EU within three years or, if outside the three-year period, there are special circumstancesto justify the waiver of the three-year rule; and(c) the person importing the goods is the person who originally exported them.

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What are the Brexit VAT implications of keeping my boat in France and the UK? - Yachting Monthly

WHILE theToriesin London and Scotland desperately try to deny the results of an election that didnt go their way, the rest of the world is taking notice of an undeniable pro-independencevictory.

With the SNP on 64 seats and the Greens on eight (which perhaps should have been even higher), last week's elections meanHolyroodnow has 72 MSPs which support independence, seven more than is needed for a majority.

That simple fact, so hard to grasp if youre a true-blue Unionist like Michael Gove, has got the world looking at Scotland.

READ MORE:Tory MSP Murdo Fraser panned for 'nonsense' attempts to deny SNP election win

While Catalonia looks on in envy at Scotlands chances of achieving self-determination, the French have also taken notice.

Published today on the front cover of Le Monde, one of Frances newspapers of record, a brilliant cartoon has shown Nicola Sturgeon blowing Scotland free from Brexit Britain.

Titled simply LEcosse a vot (Scotland voted) the cartoon will have been seen by millions of readers across the French-speaking world and beyond, thanks to Le Mondes global reach.

While Tories may dither and bluster, the rest of the world knows what happened on May 6.

Lets hope they keep watching to see what Scotland does next.

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Brilliant French cartoon shows Scotland breaking free of Brexit Britain - The National

Prime Minister Boris Johnson will reclaim powers to trigger an early election. The Government has not had full control over the timing of an election for a decade, since the Cameron-Clegg coalition passed the FTPA in 2011. Under the Act, a general election is scheduled for the first Thursday in May of the fifth year after the previous vote, although there are situations where an election can be called earlier.

The two most important scenarios where a general election can be earlier are a vote of no confidence in the Government, and a vote of two-thirds of the House of Commons.

Before the Act was passed, the power to determine whether a general election should be held early was exercised by the Prime Minister.

The Act transferred this power to Parliament.

However, in today's Queen's Speech, Her Majesty announced the repealing of the legislation.

Speaking on BBC Radio 4's Westminster Hour, Leader of the House of Commons Jacob Rees-Mogg said: "I am glad to say the FTPA will be repealed.

"That's already been drafted and that is something we will be looking at in the next session.

"It will restore the status quo ante.

"It will ensure we have the constitution acting properly and don't have the absurd shenanigans we had in 2019."

The problems of the Act were indeed highlighted two years ago when Parliament became completely deadlocked over Brexit.

Mr Johnson demanded an election, saying it was the only way to break the impasse, but was unable to secure enough MP votes.

Eventually a shift in the Scottish National Party (SNP) allowed him to go to the country, and he scored a huge 80-strong majority in December 2019.

Famous constitutional historian and Brexiteer David Starkey strongly criticised the Act in an exclusive interview with Express.co.uk.

He said back in 2019: "You should have a general election, and the fact we are not having one is by another catastrophic modification of our constitution.

"The FTPA.

"What is striking about this is that there was something absolutely similar in 1641, which is the thing that enables the long Parliament to sit right through the Civil War and turn it into the Rump Parliament.

"Until finally it is driven out by the military dictator Oliver Cromwell at the point of a pike.

JUST IN:Boris urged to 'swallow pride' and strike Swiss-style deal with EU

"That is what happens to Parliaments that sit too long and the FTPA has been an unmitigated catastrophe."

Mr Starkey explained: "It has locked us into this preposterous Parliament which can agree on nothing.

"Remember, the only thing Parliament has been able to agree on is doing nothing.

"It has never been able to agree to do anything and the atmosphere in the country is one of increasing outrage at this absolute impasse, brought about by this preposterous piece of legislation."

The Brexiteer argued that despite how rotten Theresa May's deal was, if the country had had the old structure of Parliament, the former Prime Minister could have made the vote in favour of her agreement with the EU a matter of confidence.

He added: "She couldn't because of the Fixed-term Parliament Act.

"Who was responsible?

"The liberal not not very democratic party."

Constitutional historian Vernon Bogdanor also spoke at length to Express.co.uk about the Act.

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The Professor argued that by refusing a snap election before October 31, 2019, the British people were essentially denied the opportunity of deciding whether or not they wanted Britain to leave the EU on Halloween.

He noted: "The Conservatives were right in their 2017 manifesto to propose repeal of the Act.

"For, in the world of multi-party politics and possible hung parliaments which we may be entering, dissolution is a vital safeguard against inter-party manoeuvrings and shenanigans.

Far from being a threat to democracy, dissolution is an essential weapon for the Government if the rights of voters are to be protected."

Read the original:

Boris Johnson to repeal David Cameron's 'catastrophic' law that almost halted Brexit - Express

10 May 2021

Bryan Cave Leighton Paisner LLP

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As we discussed in our It's Good To Talk article as part of ourEmerging Themes in Financial Regulation 2021 publication, manybanks and financial institutions operating in the UK havehistorically tended to favour exclusive English Court jurisdictionclauses as their preferred dispute resolution method, particularlywhen facing EU-based counterparties, given the ease of enforcementthrough EU Member States. Arbitration clauses have tended to onlybe used to mitigate enforcement risk when emerging markets areinvolved.

With arbitration being one of the fewareas unaffected by Brexit (the ease of enforcing arbitrationagreements and awards internationally, including across the EU, hasnot changed), Brexit provides a fresh incentive for the financesector to take a second look at arbitration. Arbitration offers itsusers many benefits, but there are key draws that should be ofparticular interest to banks and financial institutions, some ofwhich we cover here.

Of equal value to confidentiality, the ability for a party tochoose an arbitrator to hear its dispute is another strongattraction of arbitration. In arbitration, a party has theopportunity to consider the nature of the dispute that has arisenand the experience and sector knowledge that it would be beneficialfor an arbitrator to have in determining the dispute, so that theycan choose the best candidate with the right expertise. A partycould select an arbitrator from the finance sector with specifictechnical knowledge and experience, or an arbitrator from a legalbackground who is experienced in resolving banking and financedisputes. This feature is highly valued by most parties.

If selecting an arbitrator is a daunting prospect, help is athand. Arbitral institutions have lots of experience in appointingarbitrators suitable for the relevant dispute. Of particularinterest in this regard is P.R.I.M.E. Finance, the Panel ofRecognised International Market Experts in Finance. Launched in2012, P.R.I.M.E Finance offers a specialised forum for resolvingbanking and finance disputes and they have their own arbitrationrules, based on the UNCITRAL arbitration rules. The rules arecurrently under review, with a draft published for publiccomment. The public consultation closed on 22 March 2021 andthe latest version of the rules is expected to be publishedshortly. One of P.R.I.M.E. Finance's key selling points is itspool of over 200 legal and financial experts from which to choosearbitrators. You are not tied to choosing from that pool, but ifyou're not sure who to select as arbitrator, it is a good placeto start. These arbitrators are not exclusive to P.R.I.M.E. and youcould nominate them if you were using different arbitration rules.At least on the UK side, the pool mainly seems to be drawn from thelegal sector, although P.R.I.M.E. Finance's description of thepanel says that the pool also includes central bankers, regulatorsand derivatives market participants. The P.R.I.M.E. Finance Rulesare not used as often as other institutional arbitration rules, butare worth bearing in mind.

Banks and financial institutions are often concerned about theprospect of parallel proceedings in different jurisdictions,particularly in more complex transactions, such as in a typicalproject finance deal, where there are multiple contracts betweenmultiple parties, which relate to the same transaction or series oftransactions.

While it is generally easier to join third parties toproceedings in court litigation, it is less of a concern inarbitration, as many arbitration rules now include enhanced joinderand consolidation provisions. Joinder provisions typically allow athird party to be brought into a dispute at the request of a party,provided that the third party and the applicant party consent inwriting. Arbitral tribunals also often have the power, in certaincircumstances, to consolidate two or more sets of arbitrationproceedings to form a single set of proceedings, so that a singletribunal will determine all the issues, avoiding the risk ofinconsistent outcomes in different jurisdictions. This can usuallybe done when there is a series of related transactions and thedocuments all contain an arbitration agreement in substantially thesame form. The LCIA Rules 2020, in particular, go quite farregarding the consolidation of multiple proceedings, as they allowa tribunal to consolidate an arbitration with one or more otherarbitrations even if the arbitration agreement is between differentparties, but arises out of the same transaction or series ofrelated transactions.

If the possibility of parallel proceedings is a particularconcern, arbitration could be reserved for transactions where thereare only two parties, in order to avoid any risk.

As we considered in our It's Good To Talk article, several of themajor arbitral institutions have introduced express provisionsallowing for summary determination of claims and defences, allowingarbitrators to rule that any claim or defence is manifestly withoutmerit and to issue an award to that effect more quickly thanbefore. This is a significant change and should make arbitrationmore attractive to banks and financial institutions, who valuequick mechanisms for certain types of dispute, such as debtactions. This development puts arbitration on a more level playingfield with court proceedings, where summary judgments arecommonplace.

With Brexit providing a fresh impetus to reconsider your disputeresolution methods of choice, the advantages that arbitration canoffer banks and financial institutions should be carefullyconsidered to see if it is time for a change. We have already seensignificant growth in the use of arbitration by this sector, andrecent developments indicate that this is a trend that is set tocontinue.

Originally published 21 April 2021.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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Time To Reconsider? Post-Brexit, Now Is A Good Opportunity For The Finance Sector To Take A Second Look At The Key Benefits Arbitration Offers To...