“Onshoring” Statutory Instruments Comment Series: Benchmark Regulation: 23 October 2019

Under the European Union (Withdrawal) Act 2018—which aims, inter alia, to incorporate into U.K. law all applicable E.U. legislation and to give powers to Ministers to make such amendments to retained law as are necessary to deal with any deficiencies arising from withdrawal—HM Treasury has published statutory instruments which will “onshore” E.U. legislation related to the financial markets. This paper considers legal uncertainties arising from the changes proposed by the Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019 (the “BMR SI”).

In this paper, the FMLC has highlighted the challenges of providing a new benchmark into the E.U. once the U.K. is a Third Country post-Brexit and the legal uncertainties arising from the BMR SI.  These include uncertainties related to: (1) the central bank exemption; (2) transitional provisions in the BMR SI; and (3) scope.

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