作者：金杜律师事务所 King & Wood Mallesons
If the UK leaves the EU what’s the impact likely to be on commercial contracts and on disputes?
英国退出欧盟，会对商事合同及争议产生哪些影响？
It is unclear at the moment what the UK’s arrangements would be in the event that there is an exit from the EU, but it might be helpful to start with something that won’t change. One area that won’t change is English contractual law, so there will be no impact on the general law that affects commercial contracts in terms of interpretation, breach, frustration, and implied terms and so on. None of that will be affected by an exit from Europe. There will be discreet areas such as commercial agents where that won’t be the case, but by and large none of that will change.
目前很难确定英国如果退出欧盟会制定哪些安排，但我们可以先分析哪些方面不会发生变化。英国合同法不会变，因此，不会改变影响商事合同的一般法，如合同的解释、违约、合同落空及默示条款，等等。英国退出欧盟对这些方面不会产生任何影响。一些不起眼的领域如商事代理人会受到影响，但大体而言以上几方面均不会发生变化。
So what might change? To the extent that there is European law that is being implemented or is directly effective in England, it’s all up in the air as to whether that will continue to have an effect in England and be implemented here or whether it will be replaced or appealed in various ways. It seems likely that legislation will remain in force or be implemented into English law, but the interpretation of it will fall to the English courts instead of the European courts and so there may be divergence over time between those two sets of interpretation. It’s possible that the UK won’t go down this route and instead will fall back to our previous English legislation rather than keeping the European legislation in place.
那么，什么可能会变化？对于在英国实施或直接生效的欧盟法律，将来这些法律是在英国继续有效或实施，还是会以不同方式被取代或废止，全都悬而未决。欧盟法规很可能继续有效，或转化为英国法律实施，但其解释将由英国法院而不是欧洲法院负责，因此这两套解释之间可能会逐渐出现分歧。但英国有可能不走这条路，而是回归到以前的英国法，不再实施欧盟法规。
How does this play out in terms of dispute resolution?
会对争议解决产生哪些影响？
There are three key areas to think about here. The first is choice of law clauses, secondly jurisdiction clauses and thirdly enforcement of English judgements. In terms of choice of law clauses, most likely whatever regime comes into force, the English court will continue to uphold a choice of law clause. It’s always historically done so and it is likely that it will continue to do so. Similarly, the European Courts will be continue to be bound by the same EU rules currently in force and will continue to respect choice of law clauses as well.
有三个重要方面需要考虑。首先是法律选择条款，其次是管辖权条款，最后是英国判决的执行。关于法律选择条款，无论实行哪种制度，英国法院很可能将继续支持法律选择条款。英国法院历史上一直这么做，也很可能会继续这么做。同样，欧盟的法院将继续遵守目前有效的欧盟法规，也将继续尊重法律选择条款。
When it comes to jurisdiction clauses the position is a little more complicated because the arrangements depend on reciprocity between the European member states. Most likely, the UK will look to enter into a new arrangement with the EU member states so that reciprocity in some form will remain. If that is the case, the arrangement the regime is unlikely to change a great deal. There is a risk though that if such arrangement isn’t entered into then it will fall back to traditional rules under the various member states as to how they interpret jurisdiction clauses, whether they enforce them, whether they withhold them or not, so there is a bit of a risk area there.
管辖权条款方面，情况稍微复杂一些，因为相关安排取决于欧盟成员国之间的互惠。最有可能的情况是，英国希望与欧盟成员国达成新的安排，以某种形式保留互惠。如果情况确实如此，制度大幅变化的可能性不大。但如果未能达成以上安排，在如何解释管辖权条款、是否执行、是否拒绝等方面，英国只能依赖于各成员国的传统法规。因此，这方面确实存在一点风险。
The third area is enforcement of English judgements. At present an English judgement can be taken to anywhere in the EU and enforced based on EU rules – unless or until a new regime is agreed with the EU or the member states directly, when that would cease to be the case. There is a risk as to how enforceable an English judgement will be. Again, most likely a new regime will be put in place to deal with this but there is a risk that arises in this area and it may be sensible to think about arbitration as an alternative to English court litigation in the interim.
第三个方面是英国判决的执行。目前，英国的判决可在欧盟任何地方根据欧盟规则执行，除非英国与欧盟或欧盟成员国已经直接商定新的制度，届时情况将有所不同。英国判决的执行效力存在不确定性。同样，很可能出现的情况是，英国与欧盟协商执行一个新的制度，但这方面也存在一定风险，而在实施新制度之前的过渡期，将仲裁作为英国法院诉讼的替代方案不失为一种明智的选择。
So overall there are certainly issues to consider and commercial parties should be thinking about this now in respect of their current contracts and contracts that they are going to be entering into, but not everything is going to change and there are certainly steps that can be taken to help address some of the risks that might arise.
总的来说，肯定应该考虑某些问题，各商事当事人现在就应该审查现有合同和即将订立的合同。但并不是一切都会发生变化，而且肯定会有一些办法来应对可能发生的风险。
One area in particular where there may be a risk is current commercial contracts, which are premised on the continuing operation of the EU and on England being subject to EU rules. In the event of a Brexit, those contracts could arguably be frustrated and it may be that parties try to walk away from contracts as a result so something else that clients can be doing now is thinking about whether they can put a clause into their contract now that either says the event of a Brexit is or is not a force majeure, or a frustrated event, or a material adverse change — whatever it may be — either in a new contract that they are entering into today or amendments to a contract that is already in existence.
可能存在风险的一个领域是，一些现有商事合同建立在欧盟持续运行和英国继续遵守欧盟规则的基础上。英国一旦退出欧盟，这些合同可能会落空，而合同当事人可能会因此而试图放弃合同；所以，客户现在还需考虑在合同中加入一个条款，规定英国退欧是否属于不可抗力、合同落空事件或重大不利变化——要么将此条款纳入正在订立的新合同，要么对已订立的合同进行修订。