Decision-Making and Dispute Settlement

Abstract

This chapter discusses other governance aspects of the Withdrawal Agreement, focusing on its institutional provisions on decision-making and adjudication. Following Brexit, the days when the UK government had a vote in the Council of the EU, including a veto in many sensitive areas, or when there were UK-elected Members of the European Parliament or a UK-nominated judge at the Court of Justice of the EU (CJEU), are over. With the UK now a ‘third country’, its immediate post-Brexit relations with the EU are no longer governed through the latter’s complex institutional framework and ‘complete system of legal remedies’, but instead by the Withdrawal Agreement as an instrument of international law. The chapter then explains how the decision-making and dispute settlement provisions of the Withdrawal Agreement put the UK into a temporary limbo between, on the hand, the long shadow of EU law and the CJEU’s jurisdiction, and, on the other, a future as a third country that is facing the EU on the other side of the negotiating table or as an opposing party in international arbitration. It also looks at the new inter-party arbitration mechanism.

Joint Institutional Frameworks in EU Bilateral Agreements: Joint Bodies, Rules and Principles, and Special Procedures

“…The case is also interesting because the UK–EU Withdrawal Agreement establishes arrangements for the potentially permanently differentiated treatment of part of the UK – Northern Ireland – and its continued integration, at least as far as the EU customs code and the free movement of goods are concerned, with the EU (Phinnemore, 2020a). Moreover, the post‐Brexit UK–EU relationship is characterized by three distinct JIFs established by the UK–EU Withdrawal Agreement (WA) (Official Journal of the European Union, 2020a; see also Dashwood, 2020; Larik, 2020; Wouters, 2020), the UK–EU Trade and Cooperation Agreement (TCA) (Official Journal of the European Union, 2020b); and the UK–Euratom Agreement on Cooperation on the Safe and Peaceful Uses of Nuclear Energy (ACSPUNE) (Official Journal of the European Union, 2020c).…”

The United Kingdom: Turning its Back on Influencing the EU?

“…The institutional framework established to manage these issues comprises an EU-UK Joint Committee, various Specialised Committees, and arrangements for dispute settlement. 6 The Joint Committee brings together representatives of the UK government at ministerial or senior civil servant level and the European Commission, normally at Commissioner level (Dashwood, 2020;Larik, 2020). It is scheduled to meet at least once a year, is responsible for supervising and facilitating the implementation and application of the WA and has formal decision-making powers.…”

“…For a discussion of the WA's dispute settlement procedures, seeDashwood (2020),Larik (2020),Liefländer et al (2021).7 See also Annex VIII of the WA setting out the Rules of Procedure of the Joint Committee and Specialised Committees (OJEU, 2020a).…”

External Differentiation in the EU

“…As the scope and ambition of the UK's post-Brexit relationship with the EU narrowed, so the need for an institutional framework diminished, especially in the light of the UK's increased insistence on absolute national control. The agreement is bilateral and overseen by a Partnership Council, which proceeds by agreement and below which are a Trade Partnership Committee and numerous specialised committees (Larik 2020). If no agreement is reached, the matter may be referred to binding third-party arbitration.…”