At a critical time in the Brexit negotiations, in the latest podcast on the Herbert Smith Freehills Podcast channel, Andrew Cannon and Hannah Ambrose discuss dispute resolution between the UK and the EU. They look at the way in which the withdrawal agreement may be enforced, including the possible role of the CJEU, as well as considering how disputes may be resolved in the event of “no deal”.
Andrew and Hannah consider both the common ground and the important gaps between the EU’s and the UK’s proposals for dispute resolution. In particular, they consider the possibility of seeking political resolution before a joint committee, and discuss the limited but apparently agreed role of the CJEU in enforcing the financial settlement. They also address the proposals for mitigation of harm in the event that one side breaches the withdrawal agreement, including financial penalties and suspension of treaty rights and obligations.
Andrew and Hannah also reflect on other state to state dispute resolution procedures which may be palatable to both sides, including the use of arbitration and EFTA docking, as well as explaining why the International Court of Justice is not the right body to enforce the withdrawal agreement.
Moving on to a possible no-deal scenario, Andrew and Hannah contemplate the possibility of disputes about how much the UK is obliged to pay and when. They look at the role of the WTO dispute resolution framework in determining trade disputes, pointing out its restricted remit in the broader context of EU/UK relations, and consider whether individual Member States may have a role in seeking to enforce the UK’s international law obligations.
The podcast can be accessed here: https://soundcloud.com/herbert-smith-freehills/brexit-ep5
For further information, please contact Andrew Cannon, Partner, Hannah Ambrose, Senior Associate, or your usual Herbert Smith Freehills contact.