Enforcement and dispute resolution under the Withdrawal Agreement and any future relationship agreement: no role for the CJEU….or is there?

The post below was first published on our Arbitration blog.

On its face, the thrust of the UK Government’s Future Partnership Paper on Enforcement and Dispute Resolution (the Paper), published on 23 August, is to rule out the jurisdiction of the Court of Justice of the European Union (CJEU) to determine the enforcement of rights and obligations by individuals and businesses derived under the Withdrawal Agreement (and any future relationship agreement) and disputes between the EU and the UK.  Since the Paper was published, the Prime Minister has again reiterated the Government’s position that “the UK will be able to make its own laws – Parliament will make our laws – it is British judges that will interpret those laws, and it will be the British Supreme Court that will be the ultimate arbiter of those laws.”

However, as discussed below, whilst perhaps consistent with the stage of negotiations, the Paper is drafted to leave considerable room for manoeuvre, and it leaves many questions unanswered regarding enforcement of rights and obligations under the Withdrawal Agreement and any future relationship agreements and dispute resolution between the UK and the EU after Brexit.

The Paper follows the publication on 22 August of the UK Government’s Future Partnership Paper on Providing a Cross-border Civil Judicial Cooperation Framework, considered in our blog post here, which presented the UK’s position on the extent to which current EU rules on choice of law, jurisdiction and enforcement of judgments should continue to apply as between the UK and the EU Member States post-Brexit.   Continue reading

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Filed under Contract, Disputes, UK-EU negotiations

UK clarifies negotiating position on choice of law, jurisdiction and enforcement of judgments post-Brexit

Yesterday (22 August) the UK Government published a paper which outlines its position on the extent to which current EU rules on choice of law, jurisdiction and enforcement of judgments should continue to apply as between the UK and the EU27 post-Brexit. The paper, Providing a cross-border civil judicial cooperation framework, responds to the Position Paper on Judicial Cooperation in Civil and Commercial Matters published by the European Commission on 29 June (see our post).

Broadly, other than seeking wider enforcement of judgments, the Government agrees with the Commission’s proposals on the terms of separation, if no agreement on a future relationship can be reached. More interesting, however, are the comments on what that future relationship might look like.

Commercial parties will be pleased to see the Government has taken on board the importance of agreeing reciprocal rules, closely mirroring the current EU system, which will support cross-border trade after Brexit.

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Filed under Disputes, UK-EU negotiations, Uncategorized

UK Government releases Brexit Enforcement and Dispute Resolution paper

Another paper has been released by the UK Government. This latest paper looks at possible future options for enforcement and dispute resolution mechanisms in relation to the Withdrawal Agreement, and the arrangements to be agreed for the future relationship between the UK and the EU. This is on the basis that the ‘direct’ jurisdiction of the Court of Justice of the European Union (CJEU) in the UK comes to an end at the point of the UK’s withdrawal from the EU.

We examine this paper in detail in a blog post here.

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Filed under Disputes, UK-EU negotiations

UK GOVERNMENT RELEASES PAPER ON CIVIL JUDICIAL COOPERATION FRAMEWORK

The UK Government has released a paper addressing the UK’s position on cross-border judicial cooperation with the EU following Brexit. It also responds to an EU paper on some of the same issues from June 2017. We commented on the EU paper and summarised its key points here.

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UK Government releases new papers ahead of third round negotiations

Today the UK Government released two new position papers. The first paper outlines the UK’s proposals for the regulation of goods to ensure the availability of goods at the date of withdrawal, to avoid a potential cliff edge situation. This paper focuses on four key principles:

  1. Goods placed on the Single Market before exit should continue to circulate freely in the UK and the EU, without additional requirements or restrictions;
  2. Where businesses have undertaken compliance activities prior to exit, they should not be required to duplicate these activities;
  3. The agreement should facilitate the continued oversight of goods; and
  4. Where the goods are supplied with services, there should be no restriction to the provision of these services that could undermine the agreement on goods.

The UK Government hopes negotiations on this topic will assist in moving towards a future trade agreement with the EU.

The second paper released today addresses issues of confidentiality, particularly the confidentiality of documents and information obtained by the UK and the EU pre-withdrawal.

A third round of negotiations between the EU and UK are due to commence next week. The Government also released a news story on the two position papers, which can be viewed here.

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Filed under Article 50, Trade, UK-EU negotiations

Frictionless Trade? UK-EU Customs Relations Post-Brexit

On 15 and 16 August 2017 the UK Government published two papers setting out its proposals for UK-EU customs relations post-Brexit.  The papers represent an important step forward as they set out the greatest detail to date as to the Government’s thinking in this area.

Next Steps for Businesses

As we explain in our briefing, the Government papers indicate the possible direction of travel but not the final destination, as the proposals are partial and raise significant questions in practice.  There remains ample opportunity for businesses to seek to influence the debate and it would be prudent for businesses to study carefully the proposals in light of their own particular circumstances. Submissions should be made to stakeholder.engagement@dexeu.gov.uk.

The Government Papers and the Ongoing UK-EU Brexit Negotiations

The first of the two papers is a “future partnership paper” on UK-EU future customs arrangements, which sets out the Government’s proposals for UK-EU customs relations and calls for stakeholder input.  The second paper is a “position paper” specifically in relation to Northern Ireland-Ireland border arrangements, which covers a number of aspects, including the movement of goods across the Northern Ireland-Ireland border, and which overlaps and builds upon the groundwork in the UK-EU future customs arrangements paper.

The different status of the two papers is linked to the phasing of the ongoing UK-EU Brexit negotiations that remain currently at the first phase of discussing “exit issues”, of which the Northern Ireland-Ireland border arrangements is one.  The EU has required that sufficient progress is made in relation to these exit issues before the Brexit negotiations can move on to discussing the framework for a future relationship, including UK-EU customs arrangements.  In publishing these two papers essentially together, the UK is attempting to move the debate forward by demonstrating that these issues are to an extent interlinked – the Northern Ireland-Ireland border arrangements exit issue may depend on the future UK-EU trade relationship.

In addition and importantly, the focus for the discussion in both papers concerns those elements of customs controls that relate to customs duties and their administration.  With the exception of sanitary and phytosanitary measures (SPS) for agri-food products, which are mentioned in the Northern Ireland-Ireland border arrangements paper, these papers do not address in any detail the compliance of products with technical standards.  While this issue arises in relation to all sorts of different product sectors, it is particularly sensitive for agri-food products, where checks take place primarily at the border.

In this briefing, we explain the practical implications of the proposals put forward by the Government and the challenges that these pose.

You can read our full briefing here.

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Northern Ireland and Ireland UK Government position paper released

Today the UK Government released a position paper setting out its proposals in relation to Northern Ireland and Ireland. Following on from negotiations with the EU in July, the UK Government’s paper addresses:

  • upholding the Belfast (‘Good Friday’) Agreement;
  • maintaining the Common Travel Area and associated rights;
  • avoiding a hard border for the movement of goods; and
  • aiming to preserve North-South and East-West cooperation, including on energy.

Alongside this, the Government has published two additional data papers with figures on trade and the movement of people available here.

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Filed under Energy, Trade, UK-EU negotiations

Future Customs Arrangement – UK Government makes its position clearer with policy paper

The UK Government has published the first position paper in a series. This paper outlines the UK Government’s proposals for a new customs arrangement that facilitates the freest and most frictionless trade possible in goods between the UK and the EU, while allowing the UK to forge new trade relationships with its partners in Europe and around the world. The paper Future Customs Arrangements includes two possible approaches for future customs arrangements between the UK and the EU, and includes proposals for a time limited ‘interim period’ transition to avoid a cliff-edge for businesses and individuals on both sides.

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Filed under Trade, UK-EU negotiations

Legislating for the UK’s withdrawal from the EU

The European Union (Withdrawal) Bill was published by the Government in July 2017 and is the key piece of UK domestic legislation that will implement Brexit.

In this briefing, we explain the main features of the Withdrawal Bill, how it will impact on UK law and the important scope and interpretation issues that it raises. Continue reading

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Filed under Great Repeal Bill, Uncategorized

UK GOVERNMENT PUBLISHES RESPONSE ON THE LEGAL FRAMEWORK FOR SANCTIONS POST-BREXIT

The post below was first published on our Public International Law blog.

On 2 August 2017, the UK Government published its response to the public consultation on the UK’s future legal framework for imposing and implementing sanctions after the UK’s exit from the European Union (see our previous blog post).

The response sets out detailed answers to questions raised during the consultation, outlining the proposed powers for the imposition of financial and trade restrictions and the designation of individuals, as well as the proposed procedures under which such powers will be exercised. The Queen’s Speech on 21 June 2017 confirmed the Government’s intention to introduce a Sanctions Bill during the current Parliamentary session (2017-2019), with further guidance promised on certain issues in due course.

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Filed under Public international law, Trade, Uncategorized