In the current state of uncertainty in our European and domestic markets it is important for businesses to consider whether their contracts are fit to survive the challenges of a post-Brexit Britain.

A prudent business should look to be aware of the potential impacts of Brexit on their commercial arrangements. While no one fully knows what the post-Brexit legal and commercial landscape will look like, many commercial changes are set to come into force and these will likely be applicable to imports, exports and warranties. The impact of Brexit could turn a profitable agreement into a loss maker and this should be born in mind during any ongoing contractual discussions.

One answer in relation to new contracts that your business may be looking to enter into is to include a ‘Brexit clause’ which allows for the re-negotiation of the agreement where Brexit has occurred and has had an adverse effect on one of the parties.

Following the case of Associated British Ports v Tata Steel UK, such clauses will normally only be enforceable where there is sufficient certainty and practical content, any renegotiation clause should be unambiguous and clearly set out the triggering event and parties updated rights and obligations on such events. Failure to do this may mean you can’t rely on your Brexit clause.

If you would like to discuss your commercial agreements and plan for Brexit then please do not hesitate to get in touch with Alex Clifton on 0116 281 6232 or email alex.clifton@bhwsolicitors.com.


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