British Chamber of Commerce calls for greater clarity on future dispute resolution with the EU
31 August 2017
Although the Government says Britain “will take back control of our laws” after Brexit, it does not rule out the European Court of Justice (ECJ) keeping its jurisdiction during a transition period due to start from March 2019.
In its “Future Partnership Paper” Enforcement and Dispute Resolution, the UK Government also promises to work with the EU on "arrangements for judicial supervision" during this period; says that the rights of EU citizens living in the UK after Brexit will be subject only to British law, and adds that giving the ECJ authority over UK-EU disputes would be unprecedented and not "fair and neutral."
The promise to end "direct jurisdiction" discussed in previous UK papers has raised questions about what level of ‘indirect’ jurisdiction the EU court could be left with.
In discussing how to enforce disputes after Brexit, the government outlines several models used by other countries, which it claims demonstrate that there is is no need for the ECJ to be the final arbiter.
However some of these involve the ECJ having an influence on the outcome of disputes, for example by interpreting EU law in a way that binds a disputes panel, or for its past rulings to be taken into account.
Commentators have said a central issue is how much influence the ECJ would retain under a bilateral agreement with the UK.
The EU will not accept an agreement that allows to UK to depart from EU law to Britain’s advantage on matters such as state aid to companies, or emissions standards.
It is accepted that the EU will also want a level playing field in trade, which is likely to mean that a significant amount of EU law would have to be incorporated as part of a final agreement and the more closely that any Brexit trade agreement replicates EU law, the greater the ECJ’s influence will be.
Director general of British chambers of commerce, Adam Marshall, says UK businesses involved in disputes with regard to cross border trade need clarity on how such issues will be resolved in future.
He says: “Legal certainty is fundamental to the ability to conduct business. Companies rely on the rule of law to uphold contracts, and to seek redress if one side falls short of the bargain.
“Throughout the EU’s history there have been thousands of disputes pursued throughout the courts relating to cross-border trade. For businesses, both in the UK and EU, to trade confidently with their partners, they need clarity on how these issues will be resolved in the future.
“Firms on both sides benefit from a shared dispute framework across borders, so future procedures should be as stream-lined as possible to prevent unnecessary obstacles or bureaucracy.”
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