The key to Brexit resilience is to plan for all eventualities.

Steven Brunt, Corporate Solicitor

Speak to a Brexit expert 01782 205000

Alternatively, email brext-experts@beswicks.com

Brexit – How will it affect you?

Brexit uncertainty has led many businesses to adopt a policy of ‘wait and see’, but there are things that you could be (and should be) doing to prepare your business for Brexit and make sure you are prepared for the changes on the horizon.

To give your business a competitive edge and ensure it is ahead of the game, our advice is to start thinking now about the key challenges and opportunities that Brexit may present. Scenario planning is essential, particularly if you or your suppliers trade internationally, employ EU nationals or have employees who work in the EU.

There is no one-size-fits-all approach to preparing for Brexit and every business should consider its own particular circumstances based on factors such as location, regulatory environment, location of key customers and suppliers and make-up of its workforce.

To help you through the Brexit process, we have established a team of experts who are on hand to advise you on the best ways to prepare and protect your business.

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Talk to us about:

  • Commercial contracts
  • Data protection
  • Employment and immigration
  • Intellectual property
Brexit - Jaguar Land Rover

Commercial contracts

The type of commercial contract likely to be most affected by Brexit will be longer-term cross-border arrangements. It is therefore important to carry out an audit of your existing contract portfolio taking into consideration whether:

  • the contract can be terminated on short notice;
  • there are any minimum purchase commitments;
  • there are territorial references to ‘the EU’.  If so, will this include the UK after Brexit;
  • there is a clause which deals with which party should bear the burden of increased costs (including the payment of tariffs) and which has responsibility for customs clearance. Will Incoterms apply and do these need to be amended to reflect each party’s agreed practices;
  • the pricing mechanisms in the contract effectively provide for potential changes in the scope and rates of VAT;
  • there is a force majeure clause in the contract and, if so, what the precise scope of such a clause is. While Brexit will almost certainly not be considered a ‘force majeure event’ in itself, depending on the exact wording in the contract, it may be possible to invoke a force majeure clause in connection with changes to specific laws as a result of Brexit.

Key considerations for longer-term future contracts include:

  • the location of the parties to the contract. There may be advantages in ensuring that the parties are both located in the UK or the EU;
  • ensuring that territorial references to the EU make it clear whether or not the EU includes the UK;
  • whether it is appropriate to have a pricing formulae to vary prices in the event of changes to tariffs and to have provisions  dealing with the parties’ responsibilities for customs clearance (including flexibility in the contract to deal with the potential impact delays in customs clearance may have on delivery times);
  • whether it is appropriate to include a termination for convenience clause, with a short notice period, or even a specific Brexit termination clause;
  • whether the contract needs flexibility to accommodate any future reorganisation of a party to ensure that certain functions stay within the EU (e.g. the ability to transfer the contract to a group company);
  • which law is to govern the contract and which courts are to have jurisdiction in the event of a dispute between the parties. It may be more difficult after Brexit to enforce an English law judgment in an EU member state.

We can help you to review your existing contracts and future-proof any new arrangements moving forward.

Data protection

Unless the European Commission decides that the UK provides an adequate level of protection for personal data, it is likely that additional measures will have to be taken before personal data can lawfully be transferred from the EU to the UK.

These measures may include the adoption of standard contractual clauses or binding corporate rules.

Additionally, UK organisations that offer goods or services to, or monitor the behaviour of, data subjects who are located in the EU will be subject to the extra-territorial provisions set out in EU data protection legislation, which includes a requirement to appoint a representative in the EU.

Organisations that transfer personal data from the EU to the UK or are subject to the extra-territorial provisions of EU data protection legislation should start to pro-actively consider what steps need to be taken to ensure compliance with data protection laws post-Brexit. Such measures include the adoption of standard contractual clauses or binding corporate rules.

Should you require any data protection advice in light of Brexit, please contact 01782 205000 or email brexit-experts@beswicks.com

Intellectual property

The UK government has confirmed that EU trademarks (EUTMs) and registered Community design rights already granted will continue to be protected in the UK after Brexit, but it is not yet clear how the registration procedure will operate.

Owners of EUTMs and registered Community design rights should consider whether it is appropriate to file a UK national right in parallel with the EU protection to provide commercial certainty. In respect of unregistered Community design rights, consider whether to further protect such rights (for example, by making an application for registration).

It is worth pointing out that applicants for EU trademarks and registered Community design rights which are pending at the date of the UK’s exit from the EU will have a period of nine months to re-file the application in the UK to maintain the priority date of the EU application.

Employment and immigration

The one thing all businesses should now be doing is reviewing their current workforce to establish what the impact of Brexit is likely to be.

  • Identify how many employees you have that work in the EU. We don’t yet know if free movement will be retained, so these employees might require work visas, potentially affecting business continuity and resulting in additional costs.
  • Review the number of employees you have from the EU. EU nationals can register under the Government’s Settled Status Scheme if they want to stay. The scheme is currently being rolled out and should be fully open by March 2019. Despite this many EU nationals are reported to be returning to their home countries, making it all the more important to consider how your business would cope without them.
  • It would be good practice to check Right to Work evidence so that you know all of your employees have the correct documentation in place and are clear when documents are due to expire. This could give a good indication of who may be planning to return home following expiration of documentation.

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