The impact assessment issued by the FCA on Thursday contains a measured, non-political assessment of the potential impact of a hard Brexit on 28th March 2019 or at the end of a transitional period, or a soft Brexit-by-agreement. Loss of passporting means firms may need local authorization to service existing cross-border contracts. It says that “analysis to date suggests the impact is most significant in the insurance, uncleared OTC derivative and cleared derivative markets”. It notes that whereas the UK has introduced a comprehensive temporary permissions regime, the EC “does not appear to see a generalized problem of contract performance” (which must be a euphemism). The FCA notes that some of EU27 countries “are legislating to allow, in some cases, the continuing performance of the back-book of derivatives”. It notes that many of the effects of a no-deal scenario could be managed if the EU and UK were able to find each other equivalent ahead of exit: something alluded to in the 22nd November political declaration.
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Mark Daley joined DLA Piper in 2015 after over thirty years’ experience as a debt finance lawyer in private practice in London and Hong Kong.