Brexit: Securing the best legal framework for your businesses

Transcription

1 Brexit Webinar series Brexit: Securing the best legal framework for your businesses Matt Townsend, Charles Borden, Jonathan Hitchin and Valentijn De Boe Thursday, 1 December, 2016 Allen & Overy 2016

2 Brexit webinar series 2016 Programme Agenda 1 Brexit: Understanding the context and consequences of the UK referendum vote Tuesday, 18 October Trade, tariffs, and taxes 3 Employment, data protection, and data transfers 4 Antitrust, intellectual property, and environmental regulation 5 Commercial contracts 6 Securing the best legal framework for your businesses Tuesday, 25 October 2016 Tuesday, 1 November 2016 Tuesday, 8 November 2016 Tuesday, 15 November 2016 Thursday, 1 December 2016 Allen & Overy

3 Importance of public sector engagement Anticipating and managing political and regulatory risks Relevant to profitability and long-term viability (contracts, regulatory approvals, licenses, mergers, etc) Competitive disadvantage if don t engage What are your competitors doing? Business Value affected by govt/regulatory intervention: 30% of earnings in most industries 50% of earnings in highly regulated industries e.g. finance or telecoms Source: McKinsey & Co. Allen & Overy

4 Global approach Public affairs is increasingly going global A public affairs presence may be required in more and more jurisdictions In longstanding hubs for public affairs such as Washington, Brussels, and London legal and reputational scrutiny is growing Compliance concerns are growing in tandem The need to ensure a consistent global compliance culture A patchwork of national and local legal regimes Allen & Overy

5 Modelling the Impacts of Brexit and Being Prepared Allen & Overy

6 What should I be doing? Create the governance, reporting and infrastructure to manage Brexit. Create a steering group, reporting lines and terms of reference and identify and allocate resources needed. Assess existing business. Where is the business currently supplying and purchasing goods and services and how profitable or strategically important are those services/relationships? Scenario plan and impact analysis. What scenarios does the business face as Brexit unfolds? Create a base case and worst case scenario and assess the impact of each scenario on products and business divisions. Identify and cost-benefit options. Identify options and begin to assess cost-benefit, timing, feasibility and implications. Stakeholder engagement. Build a communication strategy: what information should be communicated to stakeholders, and how and when should it communicated? Consider informational needs of (and from) clients, counterparties, employees, shareholders, bondholders and regulators. Industry and political engagement. Stay engaged with the political and regulatory process and seek to influence events to create/maximise opportunities (while being aware of UK laws relating to the use of lobbying firms). Allen & Overy

7 The political timeline June Jan July Jan July Jan July Jan July Article 50 invoked - Negotiations with EU April/May 2017 French Elections 3Q/4Q 2017 German Elections May 2020 UK General Election (under Fixed Term Parliaments Act) March 2017 Dutch Elections December 2016 Italian Constitutional Referendum Supreme Court hears appeal on Article 50 Allen & Overy

8 Market access: modelling worst case Default to WTO Schedules (EU) No RoW FTAs Withdrawal agreement (Art 50) deals with mechanics and legacy issues only No transitional arrangements with EU No single market or customs union Rules of origin Reliance on equivalence Regulatory cliff edge Allen & Overy

9 Identifying your regulatory issues Great Repeal Act (and secondary legislation) Adoption of existing EU law as UK law (and what is left behind?) Continued compliance with export market requirements Identify (on a sector by sector basis) what the cliff edge issues are Services Goods Assess interplay with the market access options (including equivalence) Wider regulatory concerns Rule taker Mutual recognition of standards Addressing the vast majority of regulatory issues will require supply chain/business restructuring or EU agreement Allen & Overy

10 Role of a transitional agreement Could be part of or separate to the withdrawal agreement Use of EEA as a temporary harbour politically challenging Bespoke deal more likely Role of the EFTA Court and Surveillance Authority Allen & Overy

11 Role of a transitional agreement ctd. Optics of free movement Customs union/tariffs UK will be a rule-taker Sector by sector arrangements to ensure orderly separation of EU and UK law Approvals to any deal Allen & Overy

12 United Kingdom: Lobbying Rules Allen & Overy

13 Restrictions on UK government engagement UK lobbying regime Engaging current / former public officials Consultant lobbyists must register Revolving door rules on former public officials Consultant lobbyists must disclose the names of clients Limitations on paid work of serving public officials Allen & Overy

14 UK lobbying The Register of Consultant Lobbyists Offence to engage in consultant lobbying without registering Consultant lobbyists must disclose clients names in public register Consultant lobbying: Nature of communication: Communication made in the course of a business, in return for payment and on behalf of another Recipient: Minister of the Crown, Permanent Secretary or equivalent Subject matter: Legislation, government policy, the award of contracts, other agreements, grants, financial assistance, licences or other authorisations by the government, or the exercise of any other government function Allen & Overy

15 UK lobbying Exceptions, sanctions & reporting Exceptions: In-house lobbyists Incidental to (a) business or (b) representation Sovereign power and international organisations Employees (employer liable) Offence of consultant lobbying without registering Publishable by a criminal fine or civil fine Registration encourages but Registrar has investigatory and enforcement powers e.g. Information Notices First Civil Penalty Notice issued in December 2015 Reporting requirements Register public, overseen by Registrar of Consultant Lobbyists, quarterly updates must include names of clients Allen & Overy

16 Limitations on engaging UK public officials Post-employment restrictions on former UK public officials Restrictions vary depending on their seniority and role Restrictions and need for consent apply to public official, not new employer Engaging current UK public official as consultant Restrictions vary depending on seniority and role Consultancy likely a disclosable interest Public officials should act in public interest and not profit from public law Restrictions and reporting requirements apply to public official, not hiring company Even if no formal relationship, meetings / gifts / hospitality could become public Allen & Overy

17 European Union: Lobbying Rules Allen & Overy

18 Restrictions on engagement with officials from EU Institutions EU Transparency Register Staff rules on officials of the EU Institutions Entities engaging in lobbying activities (broadly defined) must register. Revolving door rules for former public officials Registered entities must report on their lobbying activities. Serving public officials subject to limitations on paid work Allen & Overy

19 EU lobbying the EU Transparency Register ? Inter-institutional Agreement Covers EC and EP Basis in the Treaty? Voluntary nature First review of the EU TR Some modest changes Juncker policy on transparency Access to top EC officials Publication of details of meetings Surge in registrations Proposal for a mandatory Transparency Register Covers Council No access without registration Clarifies notion of covered activities Further steps Mandatory register? Legislative footprint? Allen & Overy

20 EU lobbying voluntary with extremely broad scope activities-based scope with very broad definition of covered activities All activities with the objective of directly or indirectly influencing the formulation of policy or decision making Nature of communication: Recipient: Subject matter: Any direct contact or communications with EU institutions and indirect influencing Officials within the EU institutions, but excluding the Council The formulation or implementation of policy and decision-making processes of the EU institutions Allen & Overy

21 EU lobbying Exceptions, reporting & sanctions Exceptions: Exclusion for certain legal and professional advice, typical lawyer s activities. Responses to specific requests. But: no de minimis exception. Disclosure requirements For all registrants: resources devoted to covered activities in terms of personnel and costs, subjects lobbied, amount of EU funding. For third party lobbyists: turnover and client names. Critics point at inaccuracies in the data, resulting from little policing and enforcement. Sanctions for non-compliance with the EU TR or Code of Conduct No criminal sanctions, no administrative sanctions other than naming and shaming and, ultimately, removal. However: de facto mandatory since Juncker s transparency policy. Increased scrutiny by NGOs and the press. Allen & Overy

22 Limitations on engaging EU public officials and MEPs Post-employment restrictions on former EU public officials Staff rules provide for a cooling-off period of two years after leaving the service. Rules apply to the official, but employers may be bound through the Code of Conduct. Engaging current EU public officials as consultants Outside activities of EU officials require permission, must not interfere with the interests of the EU institution. Third parties engaging the official may be bound indirectly through the Code of Conduct. Members of the EU Parliament Subject to disclosure requirements. Proposal to ban MEPs from holding side jobs or other paid work that could lead to a conflict of interests. Allen & Overy

23 Contacts Matthew Townsend Partner London +44 (0) Matt is a Partner in the Global Environmental and Regulatory Law Group, and advises extensively on a range of compliance issues including: corporate governance and risk management; international trade law economic and financial sanctions; and anti-bribery policies, due diligence and compliance. Matt is recognised by independent legal directories as being one of the top regulatory lawyers in Europe. "His "level of knowledge on environmental law and regulations in the USA and worldwide impresses," say clients, who also note: "He always has a very good sense of what an in-house practitioner needs and has a great perspective on things"." Chambers UK Allen & Overy

24 Contacts Charles Borden Partner Washington, DC Charles leads Allen & Overy s Political Law Practice. He focuses on the intersection of law and political activity, and regularly counsels multinational corporations on the regulatory and compliance obligations, as well as the political and reputational consequences, of political activity relating to campaign finance law; state and local pay-to-play laws; and federal, state, and local laws concerning gifts, entertainment, postemployment restrictions for former public employees, procurement, public financial disclosures, and government ethics. He is a Visiting Fellow at the Centre for Analysis of Risk and Regulation ( CARR ) at the London School of Economics. The Centre focuses on cross-border regulatory analysis, including with respect to the regulation of public corruption and political activities. Charles also co-teaches a course entitled Government Ethics: Scandal and Reform at Harvard Law School, where he is a Visiting Lecturer in Law. Charles s Strategic Counseling practice focuses on matters involving the intersection of law and public policy. Charles frequently assists clients in crafting legislative and regulatory solutions to complex problems, and advises clients on the management of legislative and public policy risk. Allen & Overy

25 Contacts Jonathan Hitchin Partner London +44 (0) Jonathan advises on a broad range of disputes affecting corporations including those arising in the acquisition and disposal of businesses and companies, the failure of joint ventures, claims arising out of the insolvency and reconstruction of corporate entities and fraud claims. In recent years much of his time has been spent leading teams handling multi-jurisdictional corruption cases and other criminal investigations by the Serious Fraud Office (SFO). He also advises on cartel investigations and related private damages claims. Jonathan is ranked as a leading individual for commercial litigation and corporate crime issues in legal directories where comments about him include : an active and well-regarded litigator (Chambers); a key contact, and is praised for his good negotiation skills (Legal 500); and fantastic commercial instincts and popularity with clients (Chambers). Allen & Overy

26 Contacts Valentijn De Boe Senior associate Brussels valentijn.deboe@allenovery.com Valentijn specialises in advising on public-private partnerships (PPPs), public procurement law, political law and general public law. Valentijn has worked on most of the major PPP deals in Belgium, either on the side of contractors, contracting authorities and lenders. His experience includes contract drafting, negotiating, advising and litigating on these matters. Valentijn regularly lectures and publishes on public law related matters and contributed to Allen & Overy's book "Global Guide to PPP." Allen & Overy

27 Questions? These are presentation slides only. The information within these slides does not constitute definitive advice and should not be used as the basis for giving definitive advice without checking the primary sources. Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. The term partner is used to refer to a member of Allen & Overy LLP or an employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Allen & Overy LLP s affiliated undertakings. Allen & Overy