Brexit: Competition, Antitrust, Intellectual Property Rights, and the Environment

On November 8, the Chamber hosted the 4th session in a series of webinars for member companies focused on the political, economic, and commercial implications of the UK’s vote to leave the European Union in partnership with the British law firm Allen & Overy. The focus of this session was the impact of Brexit on Antitrust, Intellectual Property, and Environmental Regulations.

The conversation began with an analysis of the recent legal developments in the United Kingdom related to the role of Parliament in commencing the exit negotiations. Multiple legal challenges have arisen arguing that Parliamentary approval is needed to officially give notice that the UK intends to leave the European Union. Last week, the British High Court ruled that Prime Minister Theresa May’s government cannot start the process on its own, and must consult with and earn the approval of Parliament to issue Article 50. The government immediately appealed the ruling. Thus, on December 7, the appeal will be presented to the UK Supreme Court with a decision likely to be handed down in January. If the Supreme Court requires a Parliamentary Act, the Government’s proposed timetable for serving an Article 50 notice—and therefore ultimately Brexit itself—is likely to slip. Issuing notice by March 2017 now looks unlikely.

Turning to Competition law and Antitrust, the UK is likely to work closely with the EU on competition law and on issues including private antitrust enforcement, state aid, and merger and acquisition oversight. Still, a separate but parallel structure could provoke occasional conflicts. For example, there could be a spike in UK public interest interventions in private transactions, which are currently outlawed under common EU merger regulations.

On Intellectual Property Rights, the UK will likely no longer take part in the Unified Patent Court. Every form of IP has seen some sort of cross-European harmonization, including trademarks, copyrights, and patents. All of these are put in question to some extent by Brexit. British courts would lose the ability to launch pan-European injunctions and IP litigation in Europe would likely move towards a more piecemeal approach. This could negatively affect trademarked goods and services, making them more burdensome to protect in both the British and European markets. Copyrights, which are territorial rights and not fully harmonised, could also undergo certain changes, to be determined by the future Brexit negotiations. Though the UK already has a full range of IP remedies in national law, question remain on whether the UK will now go beyond EU IP reforms.

Finally, the speakers talked about environmental regulations. Post Brexit, UK environmental laws will be influenced by new trade deals with the EU and third countries. UK producers must also ensure they comply with the rules of export markets. Still, all sides of the UK political spectrum have embraced a similar climate agenda to the rest of the continent. It is therefore very likely that the UK will ratify and follow its commitments in the Paris Agreement.