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06th September 2017

Brexit: The UK Government’s paper on Enforcement and Dispute Resolution

Published at the end of August, the UK Government’s paper on enforcement and dispute resolution, entitled: “A future partnership paper”, includes plenty of mood music, but is disappointingly short on detail.

What this paper is essentially about are the ‘dispute resolution’, ‘jurisdiction’ and ‘applicable law’ terms of the ‘withdrawal agreement’ and future relationship agreements to be negotiated between the UK and EU – those ‘small print’ provisions that sit at the back end of well drafted commercial agreements with cross-border dimensions, too commonly treated as ‘boiler plate’. To be clear, the paper is not about filling the space presently occupied by the EU Regulations for the mutual recognition and enforcement of judgments of domestic member State civil Courts. We shall have to wait to another day to hear what the Government has to say on that aspect of Brexit.

The briefing note points to precedents for a model that could include a ‘Joint Committee’ for overseeing implementation of the agreements – akin to a ‘Disputes Board’ employed in international infrastructure projects - and ‘arbitration’ for determining points of dispute between the parties when they arise.

Whatever its subject matter, the central message of the paper to the EU is that the UK expects to lock out the European Court of Justice (CJEU) from playing an influential part in the UK’s process of disengagement from the EU and from the future relationship between them. So far, so Brexit. The political hot potato in the paper however is the suggestion that an arbitral panel adjudicating an issue between the UK and EU could ask the CJEU to make a finding – a binding determination – on the meaning of substantive EU law where a withdrawal or ‘new deal’ related agreement adopts a EU law concept. Whilst this may make logical sense from one perspective, it will not sit that comfortably with hardline ‘not in my back yard’ Brexiteers. We shall have to see where this takes us.

For the Paper, please click here.

If you require more information about the topics raised in this article then please contact Dominic Hopkins on 01604 233233 or click here to email Dominic.