Helen Curtis of Garden Court Mediation comments on enforcement and dispute resolution post-Brexit.
While this blog is primarily about mediation, it is interesting to note methods of dispute resolution wherever they occur. Even if mediation is not the dispute resolution mechanism of choice, the skills associated with mediation can usefully underpin a dispute resolution process.
The Government’s most recent ‘future partnership paper’ entitled ‘Enforcement and dispute resolution’ sets out what the Government believes are the options as to how the agreements governing UK’s withdrawal from EU and future partnership agreements will be enforced and where there is dispute, resolved. The Government asserts in this paper that individuals and businesses operating within the EU should be provided with the means to enforce their rights and obligations within the EU’s legal order and through the courts of the remaining 27 Member States. This will necessarily involve new domestic legislation to give effect to any agreements between UK and the EU.
The extent to which the Court of Justice of the European Union (CJEU) will have a bearing on future laws in the UK is the subject of negotiation and is foreshadowed in the Government’s paper.
Ideally parties to any dispute agree the dispute mechanism they wish to use. The Government notes that,
‘These mechanisms can also help ensure the uniform and fair enforcement of the agreements. Without a dispute resolution mechanism, divergent interpretations and disagreements on application are likely to go unresolved and undermine the effective functioning of the future partnership’. (para 28)
The aim is for domestic legislation in the UK to eventually provide for effective means by which individuals can enforce rights and challenge decisions. The mechanism ‘will be effective, meaningful and in accordance with the normal principles of administrative law‘ (para 17).
The mechanisms suggested are:-
(a) Joint Committees
(b) Arbitration models
(c) Reporting and monitoring Requirements
(d) and (e) Reference to pre-Agreement and post-Agreement CJEU decisions
(f) Voluntary reference to the CJEU for interpretation
The above are the mechanisms suggested by the UK for overseeing the building of ‘a new, deep and special partnership with the European Union’. The paper includes reference to the ‘principle of having a fair and neutral means of resolving disputes, as well as with the principle of mutual respect for the sovereignty and legal autonomy of the parties to the agreement’ (para 29).
Much about the future relationship between the UK and the EU after March 2019 is unclear. The current negotiations are likely though, in due course, to reveal the nature of the future agreements, how they are to be enforced and the means by which any arising disputes are to be settled. The choices made by the participants are awaited with interest.