#BrexitLawsuits in #ISDS

isds

It is possible for investors to successfully challenge the UK government for losses incurred as a result of Brexit.

The following links offer an introduction to the topic and an explanation as to why law firms are working on this issue.

For a layman’s explanation see the introduction to these suits in the Huffington Post (here).

For a more lawyery explanation of why this is something the British government should worry about, see my article on Verfassungsblog (here).

My full scale analysis of the issue is introduced on Academia (here) and the complete text can be downloaded from SSRN (here).

If you are researching this issue and are looking for a publication outlet, the Manchester Journal of International Economic Law is running a special issue (see here).

mjiel

Feel free to get in touch to share your thoughts or comment using the options below. There is after all a very lively debate on this topic.

@iGlinavos

 

 

 

 

 

The consequences of Brexit

Since 2016 I have been writing on the potential consequences of Brexit. Before the referendum, the aim was to inform the public of the dangers ahead, were Leave to prevail. After the referendum, the aim is to steer policy away from a hard-Brexit.

After Theresa May confirmed she is after a Hard Brexit, I wrote an explanation of what this means for the City, and by consequence the country.

conversation-city-and-brexit

The prospect of Brexit is already making every wage earner in Sterling poorer, as explained in my Marmitegate piece for The Conversation.

conversation-marmite

While we knew of the potential effects of a Brexit vote on currencies, few people appreciate what a hard-Brexit (with no successor agreement) will mean for investment and trade. My article on opportunities for Eastern European investors in a hard-Brexit scenario should surprise many on the Leave side.

conversation-romanians

My other published work on Brexit can be accessed via this link.

@iGlinavos

The sheriff has left town: Trump and a return to the wild-west days of finance

My article on Trump and plans for financial deregulation posted in The Conversation can be accessed here

conversation-piece-2

The article has also appeared on Newsweek

newsweek

On Salon.com (access here)

salon

And on Economia (access here)

economia

I wrote a follow-on article, discussing expressly the chances of a return of Glass-Steagall for the Huffington Post. You can view it here.

huff-post

 

@iGlinavos

 

 

Why Hard Brexit is now impossible

scary-judge

An unexpected thing happened today, the High Court in London passed judgment on a case involving the correct process of starting the British withdrawal from the European Union.

The court said that the government can only activate Article 50 (and thus start the 2 year countdown to exit) after Parliamentary approval.

What does this mean and what are the options Theresa May is faced with now?

The short of it is that the hard-Brexit trainwreck has been delayed, perhaps even postponed indefinitely. Why so?

In the current Parliament there is no majority for Brexit. This is both because the majority of MPs in the Commons stood for Remain, and because the Lords are likely to be strongly opposed to the idea.

Now, this does not mean that a majority of MPs cannot be found to vote in favour of activating Article 50. In the current circumstances, as the majority of constituencies in England voted in favour of Leave, it would be political suicide for most sitting MPs to vote against Article 50 activation.

An indication of how the Commons votes on Brexit issues is given by the failure of the proposal to protect the rights of EU citizens already resident in the UK recently. A narrow majority of MPs voted against common sense and decency. Why? Because they are afraid of their Leave voting constituents.

Is all this struggle in favour of Parliamentary involvement for nought then? Actually no. Saying that MPs will not want to openly defy the will of their constituents is not the same as saying that the majority of MPs will go along with May’s apparent desire for a hard Brexit.

From the point of view of an MP, suicide now (by voting against Brexit) against suicide after (once the consequences of a hard-Brexit begin to bite) is not a great choice. A better choice is to vote for Article 50 when given the chance, but with caveats that make participation in the Single Market a requirement for negotiations.

The logic behind this is that Brexit does in fact mean Brexit, but without meaning the utter destruction of the country’s economy. This is a sensible compromise between the public’s democratically expressed desire to commit suicide and the MPs desire for self-preservation.

This of course is relevant for the Commons. I am not investigating whether the regions will need to agree to activating Article 50, as it seems that they will not get a veto after the decision of the Belfast court. What the Lords will do is another question. The Lords do not need to (and do not) care what people think. They could block Brexit indefinitely, or force May’s hand.

Force May’s hand to do what you wonder? The answer is obvious. If the current Parliament cannot authorise a hard-Brexit and a hard-Brexit (translated as exit from the Single Market in order to achieve this fictional control over immigration) is what May wants, we need a new Parliament. We can get a new Parliament only by having an early General Election.

The chips are on the table for Mrs May. This court decision means that she buries any dreams of a hard Brexit, or she brings her hard edged dreams in the form of a party manifesto (for disaster) to the people and see what happens.

Now, the alternative avenue, appealing the court decision, is not a very clever move. The decision rests on an interpretation of Article 50 as the beginning of a process leading inevitably to irreversible loss of rights (everyone in this trial agreed this to be so). If May appeals the decision to the Supreme Court, then (as a matter of EU law interpretation) the nature of Article 50 (the crux of the matter in this case) will need to be investigated. The Supreme Court will have no choice but to refer the matter to the Court of Justice of the EU for an interpretation of Article 50. If the CJEU returns the opinion that Article 50 is irreversible, there is no basis for overturning the High Court decision. If it says it is reversible, then the decision will probably be reversed, but May will have opened an avenue for a different government (or political pressure) to stop Brexit within the two year period through another referendum, or executive decision.

You understand therefore that appealing is a lose-lose situation for May.

What is the outcome for the merry Brexit circus? Soft Brexit or an election.

What role can you play? 1- If you are against Brexit, or in any case not insane (and could live with a soft Brexit, if it cannot be avoided altogether), and 2- are lucky to be a resident of Richmond, then you could vote for the Liberal Democrats in the Richmond Park by-election on December 1st. This way you achieve two things with one vote. You ensure that another MP against Brexit joins this Parliament (need I remind you that golden boy Zac is a Brexit supporter?) plus, you send a message to May that a hard Brexit manifesto will not fare well in the ballot box.

I leave you with this thought. If May is ignorant enough to appeal this decision, how fun would it be to have the process of withdrawal from the EU become the subject of a CJEU decision?

50

@iGlinavos

I fought the Law and the Law won, till now

This post first appeared on the new SLSA Blog, it is reproduced here in full:
greek-riot-police-clash-w-001
As the troubles of Deutsche Bank remind us of the heady days leading to the collapse of Lehman, we have a good opportunity to reflect on financial rescues and resistance to the austerity that resulted, at least in Europe. While on the systemic level resistance to bailouts, and rescues with their associated conditionality may sound counter-intuitive (if there had been no rescues our economies and lives would look very different now), there is significant impetus to resist on the personal level.
 
A pensioner who as suffered repeated reductions in payments due to financial consolidation mandated by rescue conditionality; a judge who has seen incomes slashed; employees made redundant; depositors bailed-in; investors subject to haircuts; and many more have strong personal incentives to resist. Add to these financial market players who object to QE and ECB “helicopter money” and you have a strong constituency for action, despite the fact that no one would have preferred policy makers to let the market ‘creatively destroy’ itself in a Europe-wide experiment in Schumpeter’s gale.
 
The obvious vehicle for resistance is the law. How can the law then be used to protect personal interests in a hope to reverse austerity, or at least protest in individual cases?
 
The first question to ask is what to complain about?
Rescue programmes, usually in the form of MoUs between European institutions and countries in difficulty have required fiscal discipline and the reduction of budget deficits, including action on state debt levels. This led to what is widely perceived as a one-size-fits-all austerity recipe imposed on countries receiving assistance (Ireland, Portugal, Cyprus, Greece). The consequence of the implementation of these MoUs has been an uneasy mix with domestic legal provisions. In a number of cases, mandated measures have been judged unconstitutional, especially when they involved lay-offs, changes to labour laws and reductions in salaries, or increases in pension contributions. Claimants have sought to invalidate these decisions both in their implementation phase (in national courts) and at their origin (in European courts). Other claims are directed to the European Court of Human Rights in Strasbourg.
 
Many cases have been about violations of property rights. For example as a result of the Cypriot bailout, the islands two main banks  had to be restructured. The terms of the rescue required a bail-in of investors and depositors during the re-organisation. Those who saw part of their investment disappear have complained about deprivation of possession in national and European courts. In Greece too have expropriation type claims surfaced, mostly centered on losses incurred during Greece’s debt haircut, another instance of bailout mandated cuts. Claimants in this case have taken their arguments both to national courts and international investment tribunals.
 
The second question is who to complain about?
Here things get more problematic. The structure of Eurozone rescue programmes had European institutions negotiate with member states agreements, which were then signed and monitored by consortia involving, or led by, international institutions (like the IMF and the ESM). The problem with this arrangement is that while one can sue their government in national courts, European institutions in European Courts, and both in human rights courts, it is more difficult to challenge the actions of international institutions. A technical jurisdictional barrier therefore has served to shield the administrators of bailouts and MoUs from the bulk of claimants. This all however recently changed.
 
Something’s different
The European Court of Justice recently offered judgment on a case involving Cypriot claimants against European Union institutions for losses suffered due to the forced bank restructure mentioned earlier. Because actions related to the Cyprus bailout were handled by the ESM, so far there was an irremovable jurisdictional barrier to anyone who wanted to complain in a legal action about the involvement of the EU. The ECJ, for the first time however said that the tasks allocated to the Commission by the ESM Treaty oblige it to ensure that MoUs concluded by the ESM are consistent with EU law. The consequence is that the European Commission should refrain from signing MoUs whose consistency with EU law is in doubt. Suddenly the jurisdictional barrier disappeared.
 
Shall everyone run to the courts then?
Not quite yet. The court did not decide that the Cypriot MoU was illegal and ordered no compensation for Cypriot investors. The measures taken in Cyprus were judged as necessary and proportionate in the circumstances. Nonetheless, recent jurisprudence is significant as it breaks down the barrier between European institutions and international-treaty based structures that have sprang up to deal with the needs of euro-area crisis response. This opens the door to legal challenges to the bailout programmes of the EFSF/ESM offering an avenue to a plethora of claimants to unpick the questionable legal underpinnings of conditionality and austerity policies. There are a lot more claims challenging austerity and its consequences over and beyond property deprivation. Lawyers all over the European South are open for business.
running-to-court
@iGlinavos