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30th August 2017

The Brexit Papers – civil jurisdiction, dispute resolution and the future of the CJEU

The Government’s latest future partnership papers have sparked intense debate about the continued role of the Court of Justice of the European Union (CJEU) in post-Brexit Britain.

EU flag

The papers concerned deal with how the Government will approach its Brexit negotiations with the EU in relation to:

  1. civil jurisdiction[1] – that is, the rules affecting individuals and businesses concerning which state has jurisdiction to hear a cross-border dispute; which country’s law applies to that dispute; and the framework by which court judgments of one state are recognised and enforced by another; and
  2. the enforcement of obligations and rights created for the states of the UK and the EU in any withdrawal agreement (and any interim or future relationship agreements which may be needed) and the mechanisms for resolving any disputes which arise.[2]

Both papers refer to the UK leaving the EU as bringing an end to the ‘direct jurisdiction’ of the CJEU, raising concern that the Government intends to break its promise that “we are not leaving [the EU] only to return to the jurisdiction of the European Court of Justice. That is not going to happen.”[3]

Civil jurisdiction

The Government’s hopes for a future framework for civil jurisdiction are that the UK and EU are able to build on the arrangements which already exist to provide the certainty and stability that businesses, consumers and individuals need to continue with their cross-border relationships.

The Government hopes to create a reciprocal framework which closely mirrors current arrangements. These are in place, in part, as a result of the UK’s membership of the EU. As such, this paper confirms the Government’s commitment to continue participating in a number of specified international conventions once we leave.

The Government also recognises in the paper that it may be difficult to agree a complete framework for civil jurisdiction with the EU in the negotiating time available. It makes clear that if this is not possible, at the very least it hopes to agree the principles which will guide the negotiation of future arrangements.

Enforcement and dispute resolution

This paper makes clear that the Government intends to implement any agreements reached with the EU for the UK’s exit from the EU into domestic law. It envisages an international agreement containing whatever international enforcement mechanisms it is able to negotiate, without ceding enforcement powers to the CJEU. It further envisages that disputes arising under the agreements will be dealt with through a binding arbitration model rather than through the CJEU, concluding that “there is no precedent, and indeed no imperative driven by EU, UK or international law which demands that enforcement or dispute resolution of future UK-EU agreements falls under the direct jurisdiction of the CJEU”.

To the cynic, the papers can at times read as a rather aspirational wish list of what the Government hopes to achieve as it builds to what it calls “a new, deep and special partnership with the European Union”.

That being said, the papers are realistic (where critics may not be) that where individuals, businesses and governments have cross-border interests, it will be impossible for either to ignore the jurisdiction of the other’s court of last redress, whether that be the UK’s Supreme Court or the EU’s CJEU.

For further information about anything contained in this article, or to discuss the possible implications of Brexit on dispute resolution matter, please contact Caroline Watson or visit Thrings’ Brexit MOT.

[1] Providing a cross-border civil judicial cooperation framework: a future partnership paper, HM Government, 22 August 2017 (https://www.gov.uk/government/publications/providing-a-cross-border-civil-judicial-cooperation-framework-a-future-partnership-paper)

[2] Enforcement and dispute resolution: a future partnership paper, HM Government, 23 August 2017 (https://www.gov.uk/government/publications/enforcement-and-dispute-resolution-a-future-partnership-paper)

[3] Theresa May, Conservative Party conference, October 2016

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