CYIL vol. 11 (2020)

DIMITRIS I. LIAKOPOULOS CYIL 11 (2020) in Title VIII of Regulation 600/2014 71 relating to the markets for financial instruments or move the headquarters to one of the Member States, accepting however to comply with the dictates of the internal legislation of the latter, since they will no longer be able to benefit from the right of establishment 72 . To this is added another element linked to a rule of private international law contained in art. 46, par. 6, of the aforementioned Regulation 600/2014, which establishes that third country companies must “offer” to their counterparties by formulating a specific contractual clause, before providing any service or carrying out any activity towards customers established in the The Union, “to submit any disputes relating to these services or activities to the jurisdiction of a court or arbitral tribunal in a Member State” 73 . After withdrawing from the Union, the United Kingdom will naturally have to be considered as a third country; even if the provision mentioned only provides for the firm’s obligation to make an “offer”, there is no doubt that it could have the effect of sharply reducing the role of London as a forum for disputes relating to financial instruments and probably it could also help to make the choice of a UK location for operators in the sector less attractive 74 , unless specific agreement is reached with the European Union on this aspect. 8. Concluding remarks The panorama of the structure that will take on international private and procedural law in Europe following Brexit is now almost entirely outlined, although not yet definitive. Despite the cessation of force in the UK of most of the relevant European regulations and related measures, it will not be a return to the past. As we have seen, the British Regulations adopted so far maintain some of the European rules, in particular those on the law applicable to contractual and non-contractual obligations, as well as those that establish a protective regime in jurisdiction over contracts concluded by consumers and on employment contracts. The British government also hastened to ratify two Hague conventions – the one in 2005 on choice of court agreements and the one in 2007 on the recovery of food abroad – on the elaboration of which the spirit of European private international law has exerted a strong 71 Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 (Text with EEA relevance), OJ L 173, 12. 6. 2014, pp. 84-148 72 Although it must be assumed that the financial institutions that have operated on the European market so far will satisfy the required equivalence assessment, the United Kingdom could, however, lose its power of attraction towards third country operators, to whom it could hitherto ensure the release of the necessary “passport” thereby guaranteeing them access to the freedom to provide financial services in all Member States. MOLONEY, N. ‘Brexit and financial services: (Yet) another re-ordering of institutional governance for the EU financial system?’, (2018) CMLR 179ss. LEHMANN, M., ZETZSCHE, D. Brexit and the consequences for commercial and financial relations , op. cit., pp. 1016ss. KAINER, F., RESPASI, R. Trade relations after Brexit , (Nomos Verlag, Baden-Baden, 2019). ALEXANDER, K., BARNARD, C., FERRAN, E. Brexit and financial services: Law and policy , (Bloomsbury Publishing, New York, 2018). 73 MOLONEY, N. ‘Extracting the UK from EU financial services governance: Regulatory recasting or shadowing from a distance?’, in DOUGAN M. (ed.), The UK after Brexit. Legal and policy challenges , (Intersentia, Cambridge-Antwerp-Portland, 2017). 74 LEHMANN, M., ZETZSCHE, D. Brexit and the consequences for commercial and financial relations , op. cit., pp. 1020ss. To date, the Master Agreement of the International Swaps and Derivatives Association, which regulates most of the contracts on derivatives, has to date been limited to the choice between the London and Manhattan courts; in order to apply to European customers, this provision must therefore be integrated; the need to amend all existing agreements accordingly.

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