One of the functions of commercial contracts is to provide business with a degree of certainty about the future. What widgets will be supplied? When will the customer pay? What will happen if the supplier does this, or the customer does that? Uncertainty is inherent in predictions about the future, but the Brexit process has introduced a new and fundamental uncertainty to the heart of the UK’s legal system.
For example: an earlier and now outdated draft of the above paragraph included this observation: “at the time of writing, I cannot say whether the UK is likely to be within or without the EU come this time next week”.
Data protection is one of the key areas of law affected by Brexit. If the UK leaves the EU without an adequacy decision from the Commission, then transfers of personal data from the EU to the UK will immediately become problematic. Whilst there are mechanisms available to companies to help ensure that such transfers are lawful (e.g. the standard contractual clauses), they are not complete solutions, and where data is subject to multiple transfers between the EU, the UK (which will continue with an almost identical but separate GDPR-like regime) and other jurisdictions, it is difficult to give clear advice on the legal consequences (to put it mildly).
Whatever happens with Brexit, we plan to continue to take full account of EU law (as well as English law) in preparing our templates. There a few good reasons for doing so. First, EU law will continue to affect UK business both directly, when they trade with the EU, and indirectly, as decades of shared legal history cannot be quickly undone. Depending upon the terms of exit, the UK may also commit to a degree of regulatory alignment. Second, many of our customers are based in EU jurisdictions, and we want to continue to serve them insofar as we are able. Third, as we have seen with the GDPR, EU laws can act as international standards (even when over-complex and difficult to apply).
If you have any specific questions about our approach to this issue, please do let me know.