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BREXIT: Direct jurisdiction of CJEU must end, says UK government

In leaving the EU the UK will "bring about an end to the direct jurisdiction of the Court of Justice of the European Union (CJEU)", according to the latest position paper released by the UK government.23 Aug 2017

There is no precedent for the CJEU having direct jurisdiction over a non-member state and such a situation is "not necessary or appropriate", the paper on 'enforcement and dispute resolution' said.

The CJEU is in charge of ensuring member states abide by EU law. Its rulings are binding on all member states, and it settles disputes between countries and EU institutions.

The UK and the EU need to agree on how the provisions of the withdrawal agreement and a new partnership can be monitored, and how any disputes can be resolved, the paper said.

The paper outlines scenarios under which the CJEU is eventually replaced by a joint committee or an arbitration panel as the dispute resolution mechanism.

Guy Lougher of Pinsent Masons, the law firm behind said the paper sheds some valuable insight into how the government proposes that future disputes will be addressed. 

"It is clear that the government is seeking to deliver on its previous intention of avoiding a direct role post-Brexit for the CJEU," Lougher said.

"The paper draws a distinction between who will enforce the withdrawal agreement and any new trading agreement in the UK or in other EU states, and who will be the arbiter on any disputes between the signatories in relation to the interpretation of the treaties," he said.

The paper implies that the former will be addressed by the UK courts, or by national courts in other EU countries, but without the CJEU having any direct role in that process, although post-Brexit the CJEU may have an indirect role in such disputes, because in practice a national court in another EU state might refer a question for guidance to the CJEU. The paper proposes that disputes between the signatories to these agreements should not be heard directly by the CJEU but instead should be resolved by a joint committee or through a binding arbitration model," Lougher said.

Litigation expert Stuart McNeill, also of Pinsent Masons, said: "This paper is to be welcomed, but more detail around how the tribunals, committees or other dispute resolution forums would be constituted and funded would help to add ‘flesh to the bones’ of this proposal."

"Where individual rights are being protected, access across the UK and EU to justice is critically important, and it makes sense to have recourse to national institutions, but even at the UK-EU level, finding a solution to agreement disputes that avoids potentially expensive repeat arbitrations will be vital. In the latter cases, it will be interesting to see what agreement can be reached on the law that should be applied."