Brexit Briefing - April 2019

Angela Merkel to hold round-table with border stakeholders

As part of her visit to Ireland, German Chancellor Angela Merkel will today hold a round-table discussion with a group of interested parties from the border regions, including business owners and those who lived through The Troubles.

Also on Ms Merkel's itinerary are crunch talks with An Taoiseach Leo Varadkar at Farmleigh about how Ireland can pursue its twin objectives of safeguarding the customs union while simultaneously preventing a return to the hard border.

The German Chancellor, who is throwing her weight behind the Irish government, has repeatedly stressed that she would fight 'until the eleventh hour' for an orderly UK exit from Europe's 'family of nations'.

In an article in the Irish Times, the German MEP accompanying Ms Merkel on this trip, Mr David McAllister, was quoted as saying that 'Brexit is a tragedy... a horrible mistake with severe consequences for the United Kingdom'. 

In any event, the ball is very much in the UK's court, with the next few months being crucial in ascertaining just what form the much-heralded exit of the UK from the EU will take.



Cooper's extension Bill passes through Commons

Former Labour Minister, Yvette Cooper has secured the passage of a Bill through the House of Commons today which outright rejects the possibility of leaving the EU without a deal in place on the April 12 deadline, and would grant Parliament the power to decide the length of delay to be requested.

However, the EU has indicated that extension beyond May 23 will not be facilitated as the EU will not permit the uncertainty of Brexit to impact on the European elections - a cause of action Brussels views as potentially undermining the only directly elected institution in the EU.

The Bill, which passed by a very slim majority of 313-312, will now be scrutinised by the House of Lords - even though the power of the UK's upper house to veto legislation is far from absolute. 

If Ms Cooper's deal fails to receive Royal Assent before the amended deadline of April 12, then the United Kingdom is left with 8 short days to propose a comprehensive plan to the EU. If this is not accepted, then the UK will leave without a deal in place.



Ireland as a common law port after Brexit 

In September 2019, Chief Justice Frank Clarke delivered an address at Fordham University on the opportunities and challenges presented by Brexit, particularly as it pertains to Ireland's position as the largest common law jurisdiction in the Bloc following the UK's departure. As the April 12 deadline nears, perhaps it is worth revisiting this much under-discussed topic and indeed, focusing on the words of this timely and erudite address.

Chief Justice Clarke began his address by recalling fondly the fact that when he qualified at the Bar of Ireland, European law was 'remote to practitioners save for a small number of specialists'. However, in the intervening years, EU law has become 'entwined with the national legal order of Member States' - a fact which makes the 'disentanglement required by Brexit all the more problematic'.

Following the UK's departure, Ireland will be by far the largest common law jurisdiction in the European Union, ahead of the fused common-civil systems of Cyprus and Malta, whose populations are roughly 1/5 and 1/10 that of Ireland's respectively. As stated above, this fact poses both opportunities as well as challenges, the latter coming mostly in the form of pressure to introduce elements of civil codification to legal practice in Ireland. 

Ireland will seek to expand upon its reputation as a location for international dispute resolution. Even while this seems to be a great opportunity for the Irish judicial system, Chief Justice Clarke does point out that we will face stiff competition from our continental counterparts. Indeed, the Paris Commercial Court has made provision for pleadings to be heard in English and rumours abound that the Netherlands and Germany plan to do the same. 

Moreover, opportunities will arise in international insolvency litigation. Chief Justice Clarke believes that our examinership model, which allows the company controllers to remain in charge during the early phases of administration. In many ways, this is very similar to the US Chapter 11 model for insolvency, and there is an opportunity for Ireland to supplant the UK's stranglehold on this lucrative area of legal practice.

In September when Chief Justice Clarke was giving his address, a 'no-deal' exit was viewed as an extremely unlikely forecast, foretold only by the most ardent Brexiteers. However, with the uncertainty that now abounds in Westminster following Yvette Cooper's extension Bill, it seems unlikely that an orderly exit is possible and therefore, Ireland is in pole position to capitalise on the sort of legal work which Britain may lose out on. Although as with most things, only time will tell.




Note: This is not intended to be relied upon as legal advice. Any errors should be notified to the editor and will be dealt with accordingly.

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