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What impact will the draft European Union (Withdrawal) Bill (the Repeal Bill) have on restructuring and insolvency professionals? Chris Laughton, partner at Mercer & Hole, Chartered Accountants, explains that the Repeal Bill adversely affects practitioners, particularly in relation to cross-border matters and says, absent a ‘cliff-edge’ Brexit, any transition appears unlikely to be much more than a time-limited continuation of the status quo.
The Repeal Bill is said on its title page to be intended ‘to repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU’. A general discussion of the legal issues arising from the Bill is set out in blog post: The Repeal Bill—examining the legal issues.
In essence, the Repeal Bill seeks in section 1 to stop EU law applying in the UK by repealing the European Communities Act 1972 (ECA 1972).
It then seeks in section 3 to import into UK law any EU law that applies in the UK immediately before the UK leaves the EU. The EU law to be imported is that which has direct effect (eg an EU Regulation or Treaty). EU Directives will not be imported, but any UK law made pursuant to an EU Directive (such as the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, which was made pursuant to the Acquired Rights Directive 77/187/EEC) will be retained.
Unfortunately the EU laws being imported or retained are not listed, merely defined, producing a degree of uncertainty that will inevitably lead to litigation in due course.
Commentators have suggested (wrongly) that the Repeal Bill means that the law will be the same immediately after the UK leaves the EU as it was immediately beforehand. No EU law that affects relationships between laws of Member States will be recognised in the EU27 as
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Stephen qualified as a solicitor in 2005 and joined the Restructuring and Insolvency team at Lexis®PSL in September 2014 from Shoosmiths LLP, where he was a senior associate in the restructuring and insolvency team.
Primarily focused on contentious and advisory corporate and personal insolvency work, Stephen’s experience includes acting for office-holders on a wide range of issues, including appointments, investigations and the recovery and realisation of assets (including antecedent transaction claims), and for creditors in respect of the impact on them of the insolvency of debtors and counterparties.
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