Dispute settlement under the EU-UK Withdrawal Agreement. First, under WA Art 169(1) the parties must communicate the Joint Committee, a political body where they can make joint decisions, of the dispute. I would assume communication in writing will be given to JC soon. 1/

An arbitration panel can only be requested after 3 months of unsuccessful JC talks, so 10 December at best. Since there is as of yet no list of arbitrators, EU & UK have three months to agree on arbitrators. Otherwise, SG of Permanent Court of Arbitration appoints arbitrators. 2/

This means 10 Feb 2021 for the start of arbitration procedures. Transition period ends in Dec 2020. So not particularly helpful. WA dispute settlement was clearly conceived for post-transition disputes regarding, say, chicken imports, not for major breakdown of negotiations. 3/

What other means of 'dispute resolution' are there? Well, international law does not rely only on lawyers talking gravely to each other. It relies (i) on states wishing to keep their agreements; (ii) on states retaliating against each other for violations; and (iii) on states 4/

refusing to trust states who were law-breakers in the past. We may be past barrier no (i), which leaves us (ii) and (iii). As for (ii), WA Art 168 actually provides that disputes under WA can only be solved by WA means. As a result, in principle no unilateral retaliation would 5/

be permitted. WA Art 178 provides for very specific conditions under which retaliation can take place, i.e. only after arbitration and in case of non-compliance with the ruling. Which takes us into 2022 at the earliest. 6/

So we are left with international law 'sanction' no (iii), i.e. untrustworthiness being met with refusal to enter into new agreements with violator. The EU would be in a bind, however, since its main means of reciprocating is letting the transition period expire without an FTA.7/

This would be harmful for EU MSs, esp. Ireland, and force border checks between RoI and NI. Some think it is the proper way ahead, but it will be painful for all involved (hence lawyers having developed things like arbitration agreements to use instead). https://twitter.com/kevinhorourke/status/1303950629807759360

Addendum: EU could also bring a case before the CJEU, since UK is still bound by EU rules and WA is in principle EU law (WA Art 127(3)). This might mean a decision sooner, but how effective would it, if UK is willing to break WA? Might ultimately take us to international law. X/X