Abstract

After the UK Government has decided to leave the European Union. The new implications of legal frameworks were considered. The entire process is known as Brexit, which has impacted several areas of UK legislation. This can be identified as the most important aspect that has significantly impacted the commercial law of the UK. This proposal intends to deliver a clear idea about the situational discussion over the impact of Brexit in the context of UK commercial law. A background and research questions and objectives are stated in this regard, while a detailed literature review and methodology are delivered to understand how the research work will be conducted in the next step.

Summary of central research question/hypothesis

Background

The citizens of the UK voted in favour of leaving the EU in 2016 by a small margin the majority. The then British PM David Cameron soon resigned, and a brand-new PM, Theresa May, intended to push forward and honoured the results and decision of the majority. But the government provided very little guidance on Brexit[1]. The strategy of the government on EU withdrawal also remained undefined and for vague reasons; thus, the debate on the merits of Brexit was alarming. The government also refused to remain in the European Economic Area (EEA) even as an alternative to the EU further fuelled and generated high insecurity and uncertainty for continuing business activities in the UK and abroad. Brexit raises undefined infinite complexity in commercial law and business activities across the UK and generates huge hindrances for international trade. With the addition of the global COVID-19 pandemic, things got much more complex and lengthier, with Brexit taking the back seat during this pandemic[2]. It is much more vital and ever important to address the complexities and confusions in commercial law due to Brexit.

Research question:

 The research questions are realised to be the foundation of the research work, which will help in developing the base of the research. Here the research questions will help in exploring the idea regarding Brexit and its impact on commercial law in the UK.

• What are the new legal implications observed in Brexit?
• How does Brexit influence the commercial laws in the UK?
• What situation Brexit has created in the course of commercial law application?
• How does Brexit impact the commercial law application in the UK?

Research objectives:

The research objectives are another important aspect that refers to the supportive pillar of the information gained from different authenticated sources. Therefore, the below objectives could be realised as relevant in this regard.

• To investigate the legal implications raised under Brexit.
• To analyse the influence of Brexit on contemporary commercial law in the UK.
•  To evaluate the changes made in the commercial law after a shift to the Brexit.
• To understand the impact of Brexit on commercial law in the UK.

Methodology

The methodology is the most crucial part of the research work that contains the techniques and methods of data collection and analysis of those data simultaneously. Therefore, the methodology will include a clear implication of the research strategies, philosophies, approaches, and methods of data collection and analysis[3]. Thus, the aspects are explained in the following manner.

Research philosophy:

Research philosophies form the basis of the research work where three main research philosophies can be identified: positivism, philosophy, interpretivism, philosophy, and realism. In relation to this research work, the author has considered positivism philosophy as it will deliver a better opportunity to the researcher to gather information subjectively without disturbing the common phenomenon. The positivism research philosophy is chosen in this regard, as it will deliver a clear opportunity for the author to evaluate the common circumstances of Brexit and its implication on commercial law in the UK[4]. Moreover, the positivism philosophy is chosen as it would provide a practical scenario for the researcher to understand the circumstances and the topic background.

Research design

The research design is another crucial part of the research methodology, which determines how to develop the data and implement it to extract the answer to the research questions. 3 main research designs can be considered in the context of research work such as exploratory, explanatory and descriptive research design. In the context of the research work, the author has concentrated on adopting a descriptive research design as it would provide a wide array of secondary sources and an opportunity to explain the information for providing proper answers to the research questions. The descriptive research design is chosen as it would deliver a systematic description of the situation or a phenomenon or a certain amount of data[5]. To be more specific. The descriptive research design will help the researcher to provide answers to the questions, like what, when, where, and how regarding the research topic.

Research approach

Research approaches refer to the framework or the idea formation, which represents the way of collecting data and analysing it to reach a certain conclusion. While evaluating the research approach, two main aspects can be identified: the inductive and deductive approaches. In the context of the research, the author has chosen the deductive approach as it will provide the possibility to explain the causal association between the concept and the variables related to the research topic. On the other hand, it will also make it possible for the researcher to measure the concept in a quantitative or qualitative manner while generalising the research findings to answer the research questions.

Research strategy

Under the concept of research, the strategy includes different ways of data collection and the 3 main resource strategies are identified in terms of quantitative, qualitative, and mixed methods. In the context of this research work, the author has focused on adapting the qualitative. This strategy where the inclusion of secondary data will be considered to provide proper implications to the research questions and incorporate relevant data at the same time. The research strategy here is adapted in terms of qualitative research, as it would provide an opportunity to maximise the data utility and concentrate on the particularly difficult to reach information by accessing. Scholarly and authenticated secondary sources[6].

Sampling

Sampling refers to the way of identifying the proper population that is included in the data collection process. But as the author has considered secondary data collection in this regard. Therefore, no sampling technique will be adopted or implemented. In other words, while conducting secondary data analysis, sampling techniques do not apply in the context of the research work.

Data collection

Data collection is considered to be the most crucial aspect of the research work when the proper data collection sources are identified and adopted to ensure relevant information is incorporated. In this regard, the secondary data collection will be considered, where the researcher will collect information from different scholarly sources regarding Brexit and commercial law in the UK. Apart from this, different government websites and sources of Brexit regulations will also be analysed while collecting data in the same context.

Data analysis

In the context of data analysis, the collected data from secondary sources will be analysed critically to answer the research questions. All the data will be evaluated from different perspectives to understand how Brexit is influencing commercial law in the UK. The data analysis will also carry out a detailed evaluation of the current Brexit changes and the previous commercial law. On the other hand, the data analysis will also cover a critical analysis of the previous commercial laws in the UK and the current changes due to Brexit in the same context.

Limitation:

In the context of conducting the research work, several limitations need to be identified. The limitations include financial constraints, time constraints and resource constraints. The financial constraints can be identified as a mere student conducts it and the resource constraints refer to the non-availability of relevant resources for the data analysis. Apart from this, the time constraint represents the limited time period when the researcher has to submit the project, which might create a quality issue for the research work. Therefore, all these constraints will be mitigated or handled by considering a few aspects like availing university libraries for sources, preparing the project within the given time and limited financial support.

Literature Review

New legal implications under Brexit

EU-UK dispute settlement post Brexit: critical issues

The current dispute settlement mechanism which has been raised is capable of destroying and derailing agreements and negotiations while regulating any future EU-UK agreements and disputes. The UK wants a separate trade agreement with separate substantive agreements for each sector with no bindings or role from any other body for dispute resolution. It excludes all inclusion of any other body or court from Brexit and focuses on the themes of regulatory lockstep and European judicial oversight [7].

But EU prefers to make up a dispute settlement mechanism on the basis of the Withdrawal Agreement model with a partnership to fully regulate the post Brexit disputes, which uses mandatory and compulsory arbitration by referring to the Court of Justice of the European Union (CJEU).

–           Investment treaty arbitration post-Brexit and role of UK courts.

–           UK courts are mostly involved in investment treaty arbitrations.

London courts are often associated with investment treaties and arbitrations. This usually occurs during the post-award stage when encountering the proceedings either by the London seated tribunals or proceedings by enforcements. It also becomes a topic of discussion based on the extent of change it might incorporate at the last stage of the transition.

In accordance with the challenges related to London seated awards, it was highlighted that an increasingly low number of treaties are effective in adhering to the London seat requirements. In the context of identifying the new legal implications under Brexit, it is realised that the EU regulations only continued to adhere to the UK domestic regulations and legal implications, while the extent was not covered influenced the commercial legislation. The Brexit. Resources have included 30 practice groups involving different sectors like briefing, practical tools, business, and other areas. In other words, you have not concluded the future trading relationship based on the political declaration that the UK Government will not be a part of the EU. Find you and UK will treat each other as the 3rd country, and a no-deal Brexit will occur in legal implications.

The investment treaty claims post Brexit:

Brexit has significantly affected the UK registered companies’ abilities to conduct all business activities in the UK and internationally within the EU. An investor and claimant now face several barriers and obstacles to a successful claim under Brexit. An investor always has a continuous legitimate expectation of benefiting from the EU membership of the UK, which he/she expects in return for their investment. But Brexit has drastically and radically changed the legal regime in how the investor can invest. The British government has always been acting inconsistently on this issue and clearly violated treaty obligations through certain specific Brexit decisions.

Impact of Brexit on the UK commercial law

Following the withdrawal agreement, it is realised that Brexit or leaving the EU has a significant impact on the business scenarios of commercial law in the UK. The EEA companies have become international overseas companies under the UK legislation of commercial practices. Therefore, under the new Brexit legislation, the legal personalities and the reliability status of the organization have become the 3^rd country companies the member states will need to be considered carefully under the new appropriate national law[7]. As a result of Britain leaving the UK based organisations are entitled to face additional feeling and disclosure requirements that will directly impact those branch that is placed in EEA Member states. Therefore, it can be stated that Brexit itself did not cause any direct or immediate change in UK commercial law. There are certain implications for Brexit. Over the UK, corporates and. The other commercial laws with the presence of EEA. Aspects. Moreover, it is observed that the UK based organizations that fall under the UK commercial law need to be carefully crafted and considered while the Brexit indications and legal frameworks are implemented[8].

References

Beaumont P, ‘Some Reflections On The Way Ahead For UK Private International Law After Brexit’ (2021) 17 Journal of Private International Law

Capriglione F, ‘UK Referendum And Brexit Hypothesis: The Way Out Perspective And The Convenience To ‘Remain United’’ (2016) 27 European Business Law Review

Chan E and others, ‘What Impact Will Brexit Have On Public International Law In The UK? – Kluwer Arbitration Blog’ (Kluwer Arbitration Blog, 2022) <http://arbitrationblog.kluwerarbitration.com/2020/08/31/what-impact-will-brexit-have-on-public-international-law-in-the-uk/> accessed 13 May 2022

Dalhuisen J, ‘Recognition And Enforcement Of Civil And Commercial Judgments In Europe After Brexit’ [2017] SSRN Electronic Journal

Fletcher A, ‘Applying Critical Realism In Qualitative Research: Methodology Meets Method’ (2016) 20 International Journal of Social Research Methodology

FRISBY M, and SLEAVE L, ‘International Trade – How Will Brexit Impact Dealing With Disputes? – Stevens & Bolton LLP’ (Stevens & Bolton LLP, 2022) <https://www.stevens-bolton.com/site/insights/articles/international-trade-how-will-brexit-impact-dealing-with-disputes> accessed 13 May 2022

Garcés Velástegui P, ‘Beyond Positivism: Fuzzy Set Qualitative Comparative Analysis And Pragmatist Research’ [2016] revistapuce

Lehmann M, ‘Brexit And The Consequences For Commercial And Financial Relations Between The EU And The UK’ (2016) 27 European Business Law Review

Lloyd I, ‘UK: IT Law After Brexit’ (2017) 18 Computer Law Review International

uk.practicallaw.thomsonreuters.com, ‘Brexit: Implications For Commercial Law | Practical Law’ (Practical Law, 2022) <https://uk.practicallaw.thomsonreuters.com/w-004-3766?transitionType=Default&contextData=(sc.Default)&firstPage=true> accessed 13 May 2022

van Hooft A, ‘Brexit And The Future Of Intellectual Property Litigation And Arbitration’ (2016) 33 Journal of International Arbitration

---

[1] Beaumont P, ‘Some Reflections On The Way Ahead For UK Private International Law After Brexit’ (2021) 17 Journal of Private International Law

[2] Capriglione F, ‘UK Referendum And Brexit Hypothesis: The Way Out Perspective And The Convenience To ‘Remain United’’ (2016) 27 European Business Law Review

[3] uk.practicallaw.thomsonreuters.com, ‘Brexit: Implications For Commercial Law | Practical Law’ (Practical Law, 2022) <https://uk.practicallaw.thomsonreuters.com/w-004-3766?transitionType=Default&contextData=(sc.Default)&firstPage=true> accessed 13 May 2022

[4] Garcés Velástegui P, ‘Beyond Positivism: Fuzzy Set Qualitative Comparative Analysis And Pragmatist Research’ [2016] revistapuce

5. FRISBY M, and SLEAVE L, ‘International Trade – How Will Brexit Impact Dealing With Disputes? – Stevens & Bolton LLP’ (Stevens & Bolton LLP, 2022) <https://www.stevens-bolton.com/site/insights/articles/international-trade-how-will-brexit-impact-dealing-with-disputes> accessed 13 May 2022

[6] Fletcher A, ‘Applying Critical Realism In Qualitative Research: Methodology Meets Method’ (2016) 20 International Journal of Social Research Methodology

[7] Dalhuisen J, ‘Recognition And Enforcement Of Civil And Commercial Judgments In Europe After Brexit’ [2017] SSRN Electronic Journal

[8] Fletcher A, ‘Applying Critical Realism In Qualitative Research: Methodology Meets Method’ (2016) 20 International Journal of Social Research Methodology