Dispute Resolution after Brexit

von Tobias Lock

When setting out her priorities for the Brexit negotiations in a speech at Lancaster House in January, Theresa May promised to ‘bring an end to the jurisdiction of the European Court of Justice in Britain.’ This forcefully formulated ‘red line’ turned into a headache for the British negotiators as it was both somewhat misconceived – the ECJ’s preliminary reference procedure hardly results in jurisdiction ‘in Britain’ – and overly categorical ignoring both the likely content of the UK-EU withdrawal agreement and the shape of the future UK-EU relationship envisaged by her own government as a ‘new, deep and special partnership.’

Today’s paper on ‘enforcement and dispute resolution’ should therefore be welcomed as injecting a portion of realism and pragmatism in the debate over the ECJ. As I argued previously, one can broadly can identify four types of disputes that are likely to arise after Brexit. These are 1) disputes over cases that arose before Brexit; 2) disputes over the interpretation of the withdrawal agreement, in particular on citizens’ rights; 3) disputes over the interpretation of possible transitional arrangements, which may replicate some EU law; and 4) disputes over the agreement(s) on the future relationship between the EU and the UK.

When it comes to agreeing dispute settlement clauses between the EU and the UK, the EU side is constitutionally limited by the ECJ’s position concerning its own exclusive jurisdiction to render binding interpretations of EU law with effect for the EU legal order (see Opinion 1/91). There are no comparable constitutional limits in the UK legal order, but Theresa May’s red line formulated in January would have constituted a serious stumbling block to finding agreement on dispute resolution ...

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