Welcome to our Brexit Insights page.  Here we publish news and analysis by Fietta’s lawyers of developments arising out of the UK’s withdrawal from the European Union, as they relate to public international law.  One of our senior associates, Laura Rees-Evans, has recently returned from a six-month secondment to the UK’s Foreign & Commonwealth Office, where she was advising on public international law issues arising out of the UK’s withdrawal from the EU.  If you wish to discuss any of the issues addressed in these insights, or otherwise seek any advice regarding public international law issues arising out of Brexit, please contact (+44(0)203 889 9801), (+ 44 (0)20 3889 9792), or (+44(0)203 889 9808).


EU agrees “flextension” to the UK’s departure date from the EU to 31 January 2020 (updated 29 October 2019)   The EU27 (EU Member States other than the UK) has accepted the UK's request for an extension to the UK's date for leaving the EU until 31 January 2020. The European Council decision was communicated to the UK in draft form on 28 October, and adopted on 29 October after Prime Minister Johnson wrote to President Tusk to accept the offer. The decision defers the date for the UK to leave the EU under Article 50(3) of the Treaty on the EU until 31 January 2020. The decision also provides for a number of dates (1 December 2019, 1 January 2020, and 1 February 2020) on which the Withdrawal Agreement ("WA") may come into force, in the event that the Parties to the WA complete their ratification procedures and notify the depositary of the completion of such procedures in the preceding month of each respective date. The European Council Decision is available here


UK formally requests extension to the UK’s departure date from the EU (19 October 2019)   Today, Prime Minister Boris Johnson wrote to the President of the European Council, Donald Tusk, to request that the UK's date for leaving the EU be deferred to 31 January 2020. The Prime Minister was required to send the request by UK law, namely the EU (Withdrawal) (No. 2) Act 2019 (also known as the "Benn Act").  The Prime Minister's letter is available here


UK and EU agree revised texts of the Withdrawal Agreement and Political Declaration (17 October 2019)   The UK and EU negotiators on the UK's withdrawal from the EU have reached an agreement on a revised Protocol on Ireland/Northern Ireland and on a revised Political Declaration. The UK House of Commons has decided to hold an extraordinary session on Saturday (19 October 2019) at which it is expected to vote on whether to approve Prime Minister Johnson’s revised deal (and may also vote on whether to hold a second referendum on the terms of the revised deal). If Parliament does not vote in favour of the deal, or of a no-deal Brexit on 31 October, the terms of the so-called “Benn Act” (European Union (Withdrawal) (No. 2) Act 2019) require Boris Johnson to write to the European Council to request an extension to the deadline for the UK to leave the EU. Many party leaders (DUP, Labour, Liberal Democrats) have already stated their opposition to the revised Withdrawal Agreement, so there remains great uncertainty over whether the deal will be passed by Parliament. Laura Rees-Evans provided some further initial reactions to the revisions to the deal to LexisPSL, available here


Spotlight on the process of scrutiny of Brexit-related treaties and implications for treaty negotiations involving the UK (September 2019)   In January 2019, responsibility for the scrutiny of Brexit-related treaties in the UK Parliament was transferred from the House of Lords’ Secondary Legislation Scrutiny Committee to its EU Select Committee. In the eight months since taking up that responsibility, the EU Committee has published 15 reports on more than 50 Brexit-related treaties. As the EU Committee highlighted in its recent report “Scrutiny of international agreements: lessons learned”, this constitutes a “substantive body of work for which there is no precedent in the UK”. The detailed approach taken by the EU Committee and its various recommendations may influence the way Parliament conducts scrutiny of treaties in the future and could also impact the way the UK Government conducts negotiations with its future treaty partners (which according to the Constitution Committee and the EU Committee, should, for instance, lean towards further transparency). Read more »


UK Supreme Court finds that prorogation of Parliament was “unlawful, null and of no effect” (September 2019)   A full panel of 11 Justices of the UK’s Supreme Court on Tuesday 24 September handed down an historic judgment in the joined cases of R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) and Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland), finding that the prorogation of the UK Parliament was “void and of no effect”. The current parliamentary session thus “resumes” on 25 September 2019. Read more »


Brexit and treaties – what will happen to the EU’s international agreements when the UK leaves the EU? (15 August 2019)   Laura Rees-Evans gave an interview to LexisPSL on 15 August 2019 on the current status of the UK’s preparations for Brexit as regards the international agreements in which it participates by virtue of its membership of the EU, and the implications for UK legal practitioners. Laura explained that the Government is working to identify agreements that will no longer apply to the UK in a no-deal scenario and which need to be transitioned for exit day (in the case of bilateral treaties), or to which the UK will need to accede in its own right (in the case of multilateral treaties). She further explained that the Government is continuing its work to put in place arrangements with third countries to replicate the effects of the current agreements, where required, and that it has been publishing details of the status of its programme of replication on gov.uk. She sets out in her article the real-world impacts of this programme of work. The article is available in full here


Spotlight on the UK-Vietnam BIT in the context of Brexit (August 2019)   The EU has negotiated two new trade and investment protection agreements with Vietnam (the EU-Vietnam Free Trade Agreement and the EU-Vietnam Investment Protection Agreement (IPA)). The agreements were signed on 30 June 2019. At the time of writing, neither is yet in force. Like the EU-Singapore IPA (reported separately), the new EU-Vietnam IPA makes provision for the suspension or termination of certain existing bilateral investment treaties between EU Member States and Vietnam, as and when the IPA is provisionally applied or enters into force (respectively). In addition, it expressly terminates or suspends the sunset clauses in those treaties. As things stand, the provisional application or entry into force of the EU-Vietnam IPA while the UK remains an EU Member State, or during the transition period, could have complications for UK investors in Vietnam and vice versa. Read more »


Spotlight on intra-EU BITs in the context of Brexit (August 2019)   On 6 March 2018, the Court of Justice of the European Union ruled that investor-State dispute resolution provisions in bilateral investment treaties between EU Member States (intra-EU BITs) are incompatible with EU law (Slovak Republic v. Achmea BV). Buoyed by that decision, the European Commission intensified its dialogue with Member States with a view to ensuring their termination of all intra-EU BITs. In January 2019, EU Member States issued declarations in which they agreed to terminate all intra-EU BITs by 6 December 2019. On this issue as many others, Brexit has the potential to complicate matters as regards the UK’s participation in intra-EU BITs. Read more »


House of Lords Constitution Committee reports on parliamentary scrutiny of treaties (July 2019)   In October 2018, the House of Lords Constitution Committee launched an inquiry into parliamentary scrutiny of treaties. That inquiry appears to have been particularly prompted by a perception that Parliament's scrutiny of treaties needs to be reviewed in the context of Brexit. We report briefly on the Constitution Committee's key findings, and on the Government's response. Read more »


Spotlight on the UK-Singapore BIT in the context of Brexit (July 2019)   The EU has negotiated two new trade and investment protection agreements with Singapore (the EU-Singapore Free Trade Agreement and the EU-Singapore Investment Protection Agreement (IPA)). The agreements were signed in October 2018 and received the consent of the European Parliament on 13 February 2019. At the time of writing, neither is yet in force. The new EU-Singapore IPA makes provision for the suspension or termination of certain existing bilateral investment treaties between EU Member States and Singapore, as and when the IPA is provisionally applied or enters into force (respectively). As things stand, the provisional application or entry into force of the EU-Singapore IPA while the UK remains an EU Member State, or during the transition period (under any final Withdrawal Agreement), could have complications for UK investors in Singapore and vice versa. Read more »