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Great analysis of the #BrexitDeal by UK lawyer @Luxspeed (Chef de Cabinet of EFTA Court Judge Bernd Hammermann), focusing on a key issue:
Arbitration (which can be triggered when EU thinks the UK's regulatory divergence violates EU-UK deal)
https://eurelationslaw.com/blog/arbitration-tribunal-decisions-and-rulings-in-the-uk-eu-trade-and-cooperation-agreement-an-initial-examination
THREAD:
Arbitration (which can be triggered when EU thinks the UK's regulatory divergence violates EU-UK deal)
https://eurelationslaw.com/blog/arbitration-tribunal-decisions-and-rulings-in-the-uk-eu-trade-and-cooperation-agreement-an-initial-examination
THREAD:
@luxspeed: "UK and EU chose a standard form of international arbitration rather than the so-called ‘Ukraine-style’ arbitration found in the Withdrawal Agreement & Political Declaration".
The latter is something which the EU wants the Swiss to accept, but so far, they refuse.
The latter is something which the EU wants the Swiss to accept, but so far, they refuse.
The analysis focuses on:
"Article INST.29 TCA on “Arbitration tribunal decisions and rulings”
"Article INST.29 TCA on “Arbitration tribunal decisions and rulings”
@Luxspeed: (the EU-UK deal) provides for ad hoc, but structured, arbitration, and proceedings before the arbitration tribunal shall be in English"
@quatremer shouldn't be sad. Also Dutch and West-Flemish were sidelined, despite being more elegant than English.
@quatremer shouldn't be sad. Also Dutch and West-Flemish were sidelined, despite being more elegant than English.
@Luxspeed: "Inspiration has been drawn from a number of international dispute settlement systems including the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”)" and it "is reminiscent of that found in Mercosur"
@Luxspeed: If no deal on arbitrators, TCA provides: "the arbitrators shall be selected by lot from the individuals who have been formally proposed by one Party or both Parties". This means: "a Party’s failure to act does not prevent the establishment of the arbitration tribunal"
@Luxspeed: The arbitration tribunal may permit the assistants of arbiters to be present at its deliberations, "something which is not permitted at the ECJ or EFTA Court" (NOTE: @Luxspeed uses the correct but less known term CJEU, I use ECJ)
@Luxspeed continues: The "Dissenting or concurring opinions shall not be disclosed." (as with ECJ and EFTA Court, unlike at WTO).
He thinks this is "unfortunate as it may prevent the reasoning in any majority ruling from potentially being as clear as intended"
He thinks this is "unfortunate as it may prevent the reasoning in any majority ruling from potentially being as clear as intended"
No private legal challenges admitted:
@Luxspeed: "Arbitral decisions are binding on UK & EU, and the arbitration is ‘State-to-State’. This would necessitate individuals or companies lobbying either side in order to have a case brought. Access to justice has thus been curtailed"
@Luxspeed: "Arbitral decisions are binding on UK & EU, and the arbitration is ‘State-to-State’. This would necessitate individuals or companies lobbying either side in order to have a case brought. Access to justice has thus been curtailed"
@Luxspeed: "However, interestingly, and positively amicus curiae submissions “from natural persons of a Party or legal persons established in a Party” “that are independent from the governments of the Parties” shall be “considered” by the arbitration tribunal"
@Luxspeed: Art. 29(3)&(4) on how arbitrators "cannot add to or diminish rights & obligations of Parties" is meant to "ensure compliance with ECJ case law on autonomy of EU legal order" (to reassure ECJ superiority on EU law).
@Luxspeed warns this "may prove difficult to achieve"
@Luxspeed warns this "may prove difficult to achieve"
@Luxspeed continues: "“Party” is not a defined term in the TCA. The term has been left deliberately vague."
He thinks this may be "to avoid any question of mixity", i.e. whether National Parliaments & in Belgium also the Walloon Parliament will get to vote on TCA - @PaulMagnette
He thinks this may be "to avoid any question of mixity", i.e. whether National Parliaments & in Belgium also the Walloon Parliament will get to vote on TCA - @PaulMagnette
@luxspeed warns the EU-UK TCA may still turn out to be "mixed":
"Whether the drafters will have avoided mixity is open to question and beyond the scope of this post to examine. It is certainly plausible that an opinion of the CJEU may be requested."
"Whether the drafters will have avoided mixity is open to question and beyond the scope of this post to examine. It is certainly plausible that an opinion of the CJEU may be requested."
@luxspeed: "The clause 'the courts of each Party shall have no jurisdiction' may be "a late addition to the text" & is an "ouster clause", "intended to oust any jurisdiction of the ECJ", "in contrast to" the "imbalanced" Ukraine deal, where the ECJ has a big role
#ECJNotWelcome
#ECJNotWelcome
@luxspeed's conclusion:
This "provides for ad hoc, but structured, public international arbitration", which "makes sense given the ‘WTO plus’ basis of the TCA..This is to be warmly welcomed from a UK perspective as it ensures the ..neutrality of the dispute settlement mechanism"
This "provides for ad hoc, but structured, public international arbitration", which "makes sense given the ‘WTO plus’ basis of the TCA..This is to be warmly welcomed from a UK perspective as it ensures the ..neutrality of the dispute settlement mechanism"
He adds: "How far the ‘State-to-State’ arbitration tribunal will be ad hoc or more permanent in nature is uncertain...It is likely that its rules of procedure may be amended by the Partnership Council". A "registry" would for example make it "more permanent in nature", he thinks.
@luxspeed finally notes that the TCA and terms of the arbitration tribunal, are subject to joint review “every five years”, so "The TCA arbitration tribunal is likely to be the focus of attention for many years to come."
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P.S. In October, I co-authored the following @CapX comment with @Luxspeed, where we warn UK that if it would accept the model the EU wants to agree with Switzerland, it would make UK courts even less sovereign than the judiciaries of EU member states: https://capx.co/a-third-way-can-break-the-brexit-governance-impasse/
