作者：金杜律师事务所 King & Wood Mallesons

At the moment, a range of Financial Services businesses such as banks, insurance companies and asset managers are able to operate across the EU as long as they have a base in the UK. This is known as passporting.

目前，广大金融服务企业如银行、保险公司及资产管理公司，只要在英国落地，就能在欧盟各地经营。这叫做“通行制度”。

However, if Brexit occurs, passporting into the EU from the UK would not be possible unless special arrangements are put in place. Banks from outside the EU would no longer be free to just set up in the London and gain access to the wider market in the EU. To continue to maintain operations across Europe they would need to set up subsidiaries across mainland Europe in places like France, Germany, Amsterdam and Dublin, potentially, so those cities would actually benefit from taking away financial services from the UK.

但是，如果英国退欧，就不可能利用通行制度从英国进入欧盟，除非有特殊安排。来自欧盟之外的银行就不再能仅在伦敦成立一个机构，就进入更加广阔的欧盟市场。为了能继续在欧盟各地经营，企业需要在欧洲大陆成立子公司，如在法国、德国、阿姆斯特丹，可能乃至都柏林等地，这样这些城市实际上会获益，因为它们承担了英国原有的金融服务。

Currently English law is the preferred choice of governing law for banking documents and transactions. However if the UK comes out of the EU, English Law would then be a non-EU Law and this would have an impact because from 1 January a new directive came into force — the EU Bank Recovery and Resolution Directive — which requires EU firms and certain in-scope entities, which would include EU incorporated financial institutions, to include a contractual recognition clause allowing them to recognise the bailing powers of the European Union.

目前，英国法是银行文件及交易优先选择的准据法。但是，英国一旦退出欧盟，英国法会变成非欧盟法律，会产生一定影响。因为自1月1日起，一部新的指令生效——《欧盟银行复苏和清算指令》——指令要求欧盟公司及某些指令涉及到的实体，包括在欧盟设立的金融机构，把一个合同确认条款包括在相关文件中，认可欧盟的紧急救助权。

This clause needs to go into non-EU governed contracts and obviously if English law is considered non-EU law, a lot of contracts would require this clause to be negotiated by both sets of counterparties so this would add to the cost of negotiations and the length of time it takes to actually agree the documents. The other problem with Article 55 is that the scope of it and the parameters are very vague and no one is actually sure which entities they apply to, and there are issues around how actually people are meant to comply, so this adds an extra layer to the complexity of transactions and documentation. A way to avoid all of this would be to have the contract governed by the law of an EU country. Now if the UK was not an EU country, English law would be less palatable than French law, Italian Law, Spanish Law and German Law so actually the dominance of English law in financial transactions would significantly diminish.

该条款需要进入非欧盟管辖的合同中，很明显，如果英国法算作非欧盟法，很多合同需要双方谈判协商这一条款，从而增加谈判成本，延长实际达成相应文件所花的时间。指令第55条的另一个问题在于，条款的范畴及限定因素非常模糊，谁都不确定它们适用于哪些实体，实际上人们该怎么遵守也存在问题，所以交易和文件因此又复杂了一层。有一个办法避免所有这些问题，就是是规定合同受某个欧盟国家法律管辖。现在如果英国不是欧盟国家，比起法国法、意大利法、西班牙法及德国法，英国法也就没那么受欢迎；所以，英国法在金融交易中的主导地位实际上会大大减弱。