In our previous Delta Report Brexit update, we provided an overview of recent developments, set out some of the emerging issues necessitating amendments to core derivatives documentation and also considered the impact of Brexit on choice of law and jurisdiction and the enforcement of judgments. Since the end of 2017, the shape that Brexit will likely take—at least in the next few years—has become somewhat clearer. However, uncertainty remains, and the consequences for the derivatives market has yet to fully emerge; a concern given the time period now left for users to implement contingency plans9. Likewise, as of the date of publication, the UK and EU negotiating teams have had just one preliminary meeting to begin framing the negotiations over the UK's future relationship with the EU following any transition period.
For this update, we consider the potential impact of the latest developments—in particular the now published draft of the withdrawal agreement (see further below)— and also look at some of the proposed changes to the jurisdiction clause contained in the 1992 and 2002 versions of the ISDA Master Agreement as published by the International Swaps and Derivatives Association, Inc. (ISDA) (the "Master Agreements") contained in the newly published '2018 ISDA Choice of Court and Governing Law Guide10.
Key developments: December 2017 – April 2018
Conclusion of Phase I—sufficient progress
The first major development in the Brexit talks between the UK and EU negotiating teams came on 8 December 2017 with a recommendation by the European Commission (EC) to the European Council that 'sufficient progress' had been made in the first phase of the Article 50 exit negotiations.
The 'sufficient progress' recommendation was based on the conclusions of a Joint Report agreed between the EC and the UK government, which noted the progress made in the three priority areas of: (i) rights of EU citizens' residing in the UK, (ii) the dialogue on the Republic of Ireland/ Northern Ireland border issue, and (iii) the financial settlement payable by the UK11.
Subsequently, on 15 December 2017, the European Council (in an EU 27 format) unanimously indicated their agreement to the recommendation12. This enabled the European Council to adopt draft guidelines to move to Phase II—focusing on a transition arrangement and the framework for the future relationship between the UK and the EU13. While hailed as an important milestone for the UK in the negotiations, it was clear that the wording of the Joint Report—particularly on the matter of the border between the Republic of Ireland and Northern Ireland and the implications for cross-border trade in goods and services—still left much to be done in terms of reconciling the desire of the UK government to leave the EU's single market for goods and services and customs union on the one hand and, on the other, its desire for no physical border between the Republic of Ireland and Northern Ireland and a maintenance of the status quo for priority trade areas such as financial services.
Phase II of the negotiations commenced in January 2018 and has, to date, focused on the transitional arrangements that are intended to come into effect on the UK's formal date of exit (29 March 2019). The UK was keen to have this agreed as early as possible to provide clarity for businesses (particularly financial services) operating cross-border between the EU and the UK.
It was previously posited by the EU that any transitional arrangements would be documented in the 'withdrawal agreement'—a treaty containing the operative provisions relating to the UK's exit from the EU (e.g. in terms of citizens' rights, the obligation to fund further payments into the EU budget, the areas and institutions where the UK may retain an 'opt-in' etc.). However, it is expected that such agreement will not be formally signed until October 2018.
The Withdrawal Agreement—general observations
"This Agreement sets out the arrangements for the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and from the European Atomic Energy Community"
On 28 February 201814, the EC published an initial draft of the withdrawal agreement (the "Withdrawal Agreement"). A further 'colour coded' draft was then published on 19 March 2018 indicating areas of agreement between the UK and EU negotiators (in green), areas where a policy point had been agreed but drafting changes were required (yellow) and the areas that remained subject to further discussion (white). A review of the colour coded version leads to the conclusion that a number of key areas covered by the Withdrawal Agreement are indeed now agreed at negotiator level.
In a joint press-conference reviewing the text, the UK and EU chief negotiators outlined the conditional agreement that had been reached for a transition period of 21 months following the official exit date of 29 March 201915 that would end on 31 December 2020. Although the Withdrawal Agreement remains subject to further negotiation and approval by the UK and EU27 (and is hence not legally binding), clearly this is a decisive step towards providing some certainty—at least until the posited end of the transition period.
The general conclusion to draw from review of the 'green' articles of the Withdrawal Agreement is that there will essentially be maintenance of the status quo until 31 December 2020, albeit that the UK will no longer hold any formal voting rights at EU level. This would include in respect of passporting rights for UK banks/ investment firms to provide services in EU member states.
The Bank of England announced on 28 March 2018 that even this informal agreement meant banks and investment firms could rely on the transition period to adjust to Brexit, indicating that such institutions may "plan… to continue undertaking [their] activities during the implementation period in much the same way as now"16. The UK position therefore seems clear that non-UK financial institutions operating in the UK relying on passporting arrangements for trading within the UK can continue to do so—at least until the end of the transition period. The UK's Financial Conduct Authority also announced on 28 March 2018 that such institutions need not apply for authorisation at this stage17. Likewise, the UK Government has stated that even if the Withdrawal Agreement is not entered into, separate UK legislation will be passed creating a 'temporary permissions regime' to allow EU financial institutions to continue operating in the UK18.
However, as at the date of publication, no corresponding statement has been made by the European Central Bank (ECB) or any of the other European Supervisory Authorities. The ECB has also publicly stated that financial institutions should continue to prepare for a Brexit without any transition arrangements19 based on the principle of "nothing is agreed until everything is agreed". Likewise, media coverage has commented that the EC has drafted up 30 to 40 proposals to amend laws and give special powers to regulators so that the EU can manage a 'no-deal' scenario (i.e. where the Withdrawal Agreement is not executed).
Crucially, the Withdrawal Agreement, while dealing with a multitude of procedural matters concerning the UK's exit from the EU and the transition period, does not address what the UK's future trading relationship with the EU will look like after the end of such period. 'To be continued' is the overriding message to take away on that subject.
The Withdrawal Agreement—Applicable law, jurisdiction and recognition of judgments
Regarding the Withdrawal Agreement and current EU regulations concerning applicable governing law (Rome I20 and Rome II21) and jurisdiction and recognition of judgments (Brussels I Recast22), it is clear that, on the assumption a transition period is agreed, the status quo vis-à-vis the UK and the EU27 will be preserved for that period23.
As set out in our previous Delta Report Brexit update, both the UK and the EU had recognised in their formal negotiating positions on this subject24 that there was an urgent need for grandfathering provisions to preserve the integrity of contracts entered into and litigation commenced prior to the UK's exit from the EU.
The Withdrawal Agreement includes numerous provisions that seek to address these concerns although, at least in the current draft, it is clear that the EU's stated negotiating position has been applied over that of the corresponding positions previously posited by the UK government. The key articles of the Withdrawal Agreement in this regard are as follows:
- Article 62. Rome I and Rome II will continue to apply in respect of contracts concluded prior to the end of the transition period and, in the case of any event giving rise to damages, where such event occurred before the end of the transition period.
- Article 63(1)(a). The jurisdiction provisions of the Brussels I Recast will continue to apply in the UK and across the EU27 to any court proceedings instituted before the end of the transition period.
- Article 63(2)(a). Jurisdiction clauses in contracts entered into prior to the end of the transition period in the UK and the EU27 should continue to apply in accordance with the provisions of the Brussels I Recast.
- Article 63(3)(a). Regarding recognition and enforcement of judgments, Brussels I Recast should continue to apply in the UK and the EU27 to any judgments handed down before the end of the transition period.
It should be noted that all of Article 63 remains a 'white' area of the colour coded draft (indicating that the UK negotiators have yet to accept the current text). This is likely to be the case for two key reasons. Firstly, as noted in our previous Delta Report Brexit review, the UK was looking for the Withdrawal Agreement to include a future framework for these matters "which reflects closely the substantive principles of cooperation under the current EU framework"25. This request has not been accommodated by the EU thus far. A major impediment to agreement on this point is the future role of the Court of Justice of the European Union (ECJ) and its jurisprudence in the UK post-Brexit in those areas covered by Brussels I Recast.
Secondly (and as a related point), the UK wished to avoid a scenario where parties were obliged, prior to the formal date for the UK's exit and during the transition period, to sue in a particular jurisdiction (due to the manner in which their jurisdiction clauses had been framed to accommodate the provisions of the Brussels I Recast) but with no certainty as to the outcome (following the end of the transition period) by different Member State courts across the EU of their own rules as to the recognition of judgments from an English court (assuming the Brussels I Recast no longer applied).
Rather, the UK's desire was that the recognition and enforcement of judgments provisions of the Brussels I Recast should apply both in respect of proceedings instituted before the end of the transition period and also in respect of jurisdiction clauses in contracts entered into prior to the end of the transition period. Likewise, such request has not been accommodated thus far.
Choice of law and jurisdiction—the ISDA Master Agreement
As also noted in our previous Delta Report Brexit update, one of the key concerns arising for derivatives documentation in light of Brexit was in relation to the governing law and jurisdiction clauses in the documents that govern the vast majority of cross-border OTC derivative transactions —the Master Agreements.
Even without the overlay of issues created for English law governed Master Agreements by the UK's impending exit from the EU, it has often been commented that the jurisdiction clauses contained in Section 13(b) of the Master Agreements were in need of revision. Such clauses were drafted to take into account the laws and other cross-border instruments dealing with courts' jurisdiction at the time such agreements were published. However, the advent of Rome I, Rome II, the Brussels I Recast, the Lugano Convention and the Hague Convention, meant the position had evolved significantly since then for both English law and New York law governed Master Agreements.
In particular, the standard form of both the Master Agreements meant they fell outside of the Hague Convention (given this seeks to promote the use of exclusive jurisdiction clauses by restricting the application of the convention to contracts containing an exclusive jurisdiction clause in favour of the courts of a signatory state to the convention).
In response, following a consultation period with members, on 27 February 2018 ISDA published the 'Choice of Court and Governing Law Guide' (the "Guide"). The Guide provides new model clauses (supplemented by non-binding guidance as to their use) with which users may choose to replace the current Section 13(b) in the Master Agreements. The Guide is similar in format and approach to ISDA's 2013 'Arbitration Guide'26, which includes various model clauses for different arbitration forums such as the London Court of International Arbitration and the International Chamber of Commerce.
The model clauses in the Guide include:
- two exclusive jurisdiction clauses27 (one in favour of the English courts and one in favour of the New York courts) —note that this is the first time an exclusive jurisdiction clause has appeared in either of the Master Agreements; and
- a simplified non-exclusive jurisdiction clause (drafted to accommodate both English law governed and New York law governed agreements).
Inclusion of both an exclusive and non-exclusive model clause was done primarily to allow a greater degree of flexibility and to ensure that where parties still continued to apply non-exclusive jurisdiction clauses that these were as consistent as possible across the market.
In its consultations with members, ISDA recognised that while, historically, the overarching principle for choice of court was that of non-exclusivity, the market now appears to have moved in favour of exclusivity. However, as stated in the Guide, ISDA was of the view that it would be premature to do away with the option of non-exclusivity altogether at this stage—particularly for counterparties contracting with entities in jurisdictions where recognition of both arbitral awards and English or New York court judgments was challenging.
The Guide also contains:
- an expanded definition of 'Proceedings' to cover disputes relating to non-contractual rights or obligations that arise from, out of or in connection with the relevant Master Agreement; and
- an expanded governing law clause, again expressly covering the choice of law for non-contractual obligations (an oft made amendment in the Schedule to the Master Agreements in view of the coming into force of Rome I and Rome II), which corresponds to the expanded governing law clause seen in the 2013 ISDA Arbitration Guide.
It should be noted that the Guide has not been published in protocol form and will therefore only apply to the extent that parties include the model clauses when negotiating the Schedule to the Master Agreements or by amending existing Master Agreements.
THE DELTA REPORT
Derivatives Newsletter
June 2018
9 — At present, the UK will formally exit the EU on 29 March 2019, absent any agreed transitional arrangements (see below).
10 — Available at: https://www.isda.org/a/7YsEE/180130_ISDA-Choice-of-court-and-governing-law-guide-prepublication-fina.._02262018.pdf
11 — http://europa.eu/rapid/press-release_IP-17-5173_en.htm
12 — https://www.consilium.europa.eu/en/meetings/european-council/2017/12/1513
13 — https://www.consilium.europa.eu/media/32236/15-euco-art50-guidelines-en.pdf
14 — https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement.pdf
15 — https://ec.europa.eu/commission/sites/beta-political/files/draft_agreement_coloured.pdf
16 — https://www.bankofengland.co.uk/-/media/boe/files/prudential-regulation/letter/2018/firms-preparations-for-the-uk-withdrawal-from-the-eu-update-march-2018.pdf?la=en&hash=FD310274EDB28E2A0440228F3DD928E4BB725457 and https://uk.reuters.com/article/us-britain-eu-banks/bank-of-england-reassures-finance-companies-on-brexit-transition-deal-idUKKBN1H41V1
17 — https://www.fca.org.uk/news/statements/fca-statement-eu-withdrawal-following-march-european-council
18 — https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2017-12-20/HCWS38219
19 — https://www.ft.com/content/1e9dcb10-2c52-11e8-9b4b-bc4b9f08f381
20 — Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)
21 — Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)
22 — Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
23 — Note that this only applies to the 27 EU Member States of the EU. As noted in our previous Delta Report Brexit update, the UK’s relationship with non-EU Member States (including EEA and EFTA member states) is governed by the Lugano Convention and the Hague Convention. Currently, the UK is only a party to these conventions by virtue of its EU membership and not in its own right.
24 — For the UK, see documents at links: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/639271/Providing_a_cross-border_civil_judicial_cooperation_framework.pdf and https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/639609/Enforcement_and_dispute_resolution.pdf
For the EU, see document at link: https://ec.europa.eu/commission/publications/position-paper-judicial-cooperation-civil-and-commercial-matters_en
25 — See footnote 24
26 — Available at: https://www.isda.org/a/6JDDE/isda-arbitration-guide-final-09-09-13.pdf
27 — Note that these have been drafted to ensure the clauses now fall within the scope of the Hague Convention.
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© 2018 White & Case LLP
