Post-Brexit disagreements between the UK and the EU should be resolved by a new dispute resolution mechanism—possibly applying up-to-date caselaw from the European Court of Justice (ECJ), the government has said in its latest partnership paper.
Once the UK leaves the EU, it will no longer be within the jurisdiction of the ECJ.
In its paper, published this week, Enforcement and dispute resolution—a future partnership paper, the government says the UK and EU need to agree ‘how both the provisions of the Withdrawal Agreement, and our new deep and special partnership, can be monitored and implemented to the satisfaction of both sides, and how any disputes which arise can be resolved’.
Any dispute resolution happening after Brexit could refer to ECJ caselaw up to the point of departure, it says. The Repeal Bill specifically gives pre-Brexit caselaw binding status in the UK.
However, the government could also agree that reference be made to ECJ caselaw arising after Brexit. It states: ‘The value of such arrangements lie where there is a shared interest in reducing or eliminating divergence in how specific aspects of an agreement with the EU are implemented in the EU and the third country respectively.
Chair of the Bar, Andrew Langdon QC, said: ‘The paper raises more questions than it seeks to answer on what is a matter of crucial significance to the UK.
‘A number of suggested alternate mechanisms to the ECJ are listed, though it is not clear which, if any, the government favours. Whatever agreement the UK reaches with the EU, there must be some form of dispute resolution process with the EU post-Brexit in which all parties have confidence.
‘There are important regulatory, economic and rights-based reasons for ensuring legal certainty which underline the ongoing relevance of the ECJ case law post March 2019. The Bar Council will be seeking to work closely with Whitehall on this important issue.’
While the government does not single out any preferred dispute resolution mechanism, it outlines some possibilities. For example, a Joint Committee comprised of representatives from both parties, which are often used in free trade agreements, including in the EEA agreement and the North American Free Trade Agreement (NAFTA). These are sometimes underpinned by technical groups.
Another possibility is an arbitration model, as used for CETA between the EU and Canada, the free trade agreement between the EU and Vietnam, and that between New Zealand and South Korea. There are some limits, however, as an arbitration panel cannot adjudicate on matters of interpretation of EU law in such a way as to bind the EU and its Member States.
Reporting and monitoring requirements are a third possibility. Both parties would be given the means to evaluate the compatibility of relevant domestic legislation and processes. The government says these are relatively common in international agreements, for example, the Lugano Convention between EU and EFTA Member States provides for an information exchange system for relevant court judgments.
The government also states that it will work with the devolved administrations in Scotland, which has a separate legal system, Wales and Northern Ireland ‘to ensure their priorities on these issues are taken into account’.
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