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Options for the future UK-EU dispute settlement mechanism

Posted: 1 May 2018

This paper outlines the Law Society’s views on the building blocks needed to construct a fair, transparent and accessible mechanism for the resolution of disputes between the UK and the EU after the UK leaves the EU.

In this paper we:

  • examine the mechanisms currently in use between the EU and third countries
  • highlight the elements of each that may need to be replicated by EU and UK negotiators when constructing a mechanism to enforce the final EU-UK agreement
  • explore the characteristics of the Court of Justice of the European Union (CJEU) in its role as an arbiter of legal disputes between national governments and the EU institutions.

We conclude that any UK-EU dispute resolution mechanism should have several key principles, including the following:

  • It should be more robust than those used in FTAs.
  • The same system should apply across all strands of the final deal.
  • It should continue to allow individuals access to enforce rights granted to them under the final UK-EU agreement.
  • It should be efficient, affordable and unrestrictive for different parts of the agreement.
  • It should provide for the creation of convergence between decisions made by it, the UK courts and the CJEU.
  • There should be scope for UK-EU political dialogue where there is a danger of divergence in interpreting the terms of the agreement.

This is the third and final in a series of policy papers the Law Society has published this year on Brexit. We have previously published papers on the shortcomings of the EU’s Comprehensive Economic and Trade Agreement (CETA) with Canada as a model for the UK’s future relationship with the EU, and on the Brexit transitional arrangements.