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
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For further information, please contact Andrew Cannon, Partner, Hannah Ambrose, Senior Associate, or your usual Herbert Smith Freehills contact.
The White Paper published yesterday, “The Future Relationship between the United Kingdom and the European Union”, includes the UK Government’s proposal for the resolution of disputes between the UK and the EU under what the UK Government views as an “Association Agreement”. This Association Agreement would form the institutional framework for the relationship, with a number of separate agreements (the majority falling within this institutional framework), each covering different elements of economic, security and cross-cutting cooperation.
Under the institutional framework there would be a UK-EU Governing Body, and under that Governing Body and answerable to it, a Joint Committee which would be responsible for the effective and efficient administration of the agreements. The Joint Committee, “through regular and structured dialogue”, would seek to prevent disputes arising, or otherwise play a role in resolving them.
The White Paper emphasises the potential for resolution of disputes through dialogue and non-formal means. However, it also outlines a potential dispute resolution process to ensure that the obligations contained in the institutional framework and agreements can be enforced if needed.
The Brexit White Paper
The much-anticipated Brexit White Paper, ‘The United Kingdom’s exit from and new partnership with the European Union’, was published on 2 February 2017. This post focuses on a subject that has to date received relatively little attention—what it has to say about the future of dispute resolution. In its Chapter 2 (‘Taking control of our own laws’), and Annex A, the White Paper contains perhaps a surprising amount on dispute resolution, in comparison to the text devoted to the other eleven of the UK government’s 12 stated principles.
In this blog post we review the White Paper with the aim of discerning so far as possible the potential future of dispute resolution for the UK. In particular, we consider how the UK government envisages, at this relatively early stage, that disputes will be resolved under new post-Brexit UK-EU agreements, and if and how UK businesses will be able to enforce their provisions. We also consider certain implications of the end to the Court of Justice of the European Union (CJEU)’s jurisdiction in the UK and the adoption of the acquis under the Great Repeal Bill.