header-logo header-logo

03 May 2018
Categories: Legal News , Brexit
printer mail-detail

Peers review dispute resolution & enforcement post-Brexit

A Lords’ committee led by Helena Kennedy QC has issued a stark warning on the consequences of leaving the EU without effective replacement dispute resolution systems in place.

In a report published this week, 'Dispute resolution and enforcement after Brexit', it warns that disagreements with the EU could be ‘potentially insoluble’ and individuals and businesses left without any ability to protect and enforce their rights. Moreover, without the jurisdiction of the Court of Justice of the European Union (CJEU), the government will have to agree multiple dispute resolution procedures.

Chair of the EU Justice Sub-Committee, Baroness Kennedy of The Shaws, said: ‘We are really worried now about the lack of time.

‘This is difficult stuff, and unless both sides show real flexibility in the coming months, not only could the rights of businesses and individuals be threatened, but the whole Brexit withdrawal agreement could end up being potentially unenforceable.’

When the UK leaves, the government has said it will end the direct jurisdiction of the CJEU. The committee oppose leaving the CJEU to interpret ‘the entirety’ of obligations under the withdrawal agreement. This would be ‘problematic’, it says, due to the ‘perception of bias’. However, the CJEU has the final say on interpretation of EU law, which reduces the scope for innovative solutions.

Baroness Kennedy said: ‘The government claimed that continuing the jurisdiction of the [European] Court of Justice was a “red line”.

‘But it is increasingly clear that operating without cross border courts is impossible if we want to trade, have secure borders, cooperate on crime and enforce agreements with the EU as a future partner. It now seems we will have to have a whole set of courts and quasi-courts rather than just one.

‘In fact, even the government now accepts that there may have to be some give and take: if the UK wants to stay in key EU agencies, such as on medicines or aviation, it will have to “respect the remit” of the CJEU.’

As well as covering issues relating to Northern Ireland, mutual recognition of judgments, the transition agreement, the withdrawal agreement and the European Arrest Warrant, the wide-ranging report delves into the impact of Brexit on the influence of the UK legal system. It concludes that the loss of the ability to affect the development of EU case law will have a negative impact on the international standing of the English common law system.

The Law Society is also opposed to the CJEU having sole direct jurisdiction over the deal struck between the EU and UK. It published a paper this week, ‘Brexit: Options for a future UK-EU Dispute Settlement Mechanism’, urging the government to create a bespoke, UK-based mechanism for individuals and organisations to resolve disputes relating to the deal.

MOVERS & SHAKERS

Bellevue Law—Lianne Craig

Bellevue Law—Lianne Craig

Workplace law firm expands commercial disputes team with senior consultant hire

EIP—Rob Barker

EIP—Rob Barker

IP firm promotes patent attorney to partner

Muckle LLP—Ryan Butler

Muckle LLP—Ryan Butler

Banking and restructuring team bolstered by insolvency specialist

NEWS
A High Court ruling involving the Longleat estate has exposed the fault line between modern family building and historic trust drafting. Writing in NLJ this week, Charlotte Coyle, director and family law expert at Freeths, examines Cator v Thynn [2026] EWHC 209 (Ch), where trustees sought approval to modernise trusts that retain pre-1970 definitions of ‘child’, ‘grandchild’ and ‘issue’
Fresh proposals to criminalise ‘nudification’ apps, prioritise cyberflashing and non-consensual intimate images, and even ban under-16s from social media have reignited debate over whether the Online Safety Act 2023 (OSA 2023) is fit for purpose. Writing in NLJ this week, Alexander Brown, head of technology, media and telecommunications, and Alexandra Webster, managing associate, Simmons & Simmons, caution against reactive law-making that could undermine the Act’s ‘risk-based and outcomes-focused’ design
Recent allegations surrounding Peter Mandelson and Andrew Mountbatten-Windsor have reignited scrutiny of the ancient common law offence of misconduct in public office. Writing in NLJ this week, Simon Parsons, teaching fellow at Bath Spa University, asks whether their conduct could clear a notoriously high legal hurdle
A landmark ruling has reshaped child clinical negligence claims. Writing in NLJ this week, Jodi Newton, head of birth and paediatric negligence at Osbornes Law, explains how the Supreme Court in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5 has overturned Croke v Wiseman, ending the long-standing bar on children recovering ‘lost years’ earnings
A Court of Appeal ruling has drawn a firm line under party autonomy in arbitration. Writing in NLJ this week, Masood Ahmed, associate professor at the University of Leicester, analyses Gluck v Endzweig [2026] EWCA Civ 145, where a clause allowing arbitrators to amend an award ‘at any time’ was held incompatible with the Arbitration Act 1996
back-to-top-scroll