Nick makes an important point that deserves some explanation. We have discussed the content of the “WTO option” - but what is the effect of WTO law? This is uncontested and for those hoping for WTO law to ride to the rescue - devastating (thread)
2) I will assume, for the purposes of this thread, that the WTO mandates that the EU and the UK reatain seamless trade: recognize each other’s standards, conformity assessment. Whatever you want. This is definitely not the case. I assume arguendo
3) Brexit day comes. EU imports show up on the UK border, UK imports show up on the EU border. What law will the customs officer look at? Only, only national law. They will not look at WTO law. If you say “but what about WTO law”? They’ll say: I look at my national rules.
4) Outraged, you go to court. To a UK court to complain about the UK customs officer, to Member States Courts / ECJ to complain about the EU officer. WTO law. You argue. It mandates everything I want. You lose.
5) How can this be? WTO law is part of public international law. There’s a long, long debate how and to what extent national administrations / courts may apply public international law.
6) I’ll spare you the details, roughly: the UK is a dualist system. It has decided that its courts, its administration does not, may not apply public international law until implemented by the legislature.
7) When it comes to WTO law, the EU is not different.
8) Outrageous, you say. You have now lost your case in UK courts (if you complained about UK customs’ breaches of WTO law) or in EU courts (if you complained about EU member states’ customs’ breaches). BUT wasn’t there a WTO court?
9) Great, you lawyer up (by now you have realized that no matter what, we lawyers tend to win) and take your case to Geneva. And...
10) Lose again. This time because the WTO will not take cases by individuals. It only hears cases between WTO members (states, essentially) (it’s also not called a court, calling it a court immediately causes US lawyers in particular to get an allergic rash)
11) So you take yet another lawyer. This one lobbies your respective home state (UK or EU) to sue the one that was in breach of WTO law. As we assume that WTO law gives you everything you ever wanted you are tremendously happy.
12) Of course, you have, by now, lost millions over the 4 years it took you to bring the case. If you have only lost hundreds of thousands your home government would not even consider bringing the case to the WTO. But you won, so no harm, you get the money, right?
13) Hold your horses. WTO dispute settlement does not order states to make good on your past losses. In fact, what you get is a ruling that the EU or the UK (depending on who sued whom) has broken WTO law and has to bring its law into compliance.
14) Well great. That’s all very depressing, but at least I’m safe from now on. Am I not? Well, let’s assume the state violating WTO law decides to play hardball. It doesn’t change a thing.
15) Well that’s a shocker. What then? What can you get? The best you can get is WTO dispute settlement to authorize your home state, the one taking up “your” case to retaliate.
16) So if you are Toyota, fearing your UK manufacturing is no longer cost-effective, what might happen is that the UK will now impose retaliatory tariffs on French wine. The (not unrealistic) idea of that construct is that it creates an incentive to comply.
17) However, for your personally this means nothing. Except that the Bordaux with which you wanted to forget your sorrow will now be more expensive. Congratulations.
18) Caveats (I’m a lawyer, can’t even have coffee without a disclaimer): compliance with WTO law is not that bad. So don’t expect things to go that way. But also: WTO law does not give us everything we want. Far, far, far from it. And finally
19) The US is in the process of starving the Appellate Body anyway. Feel free to have your beer now. If you have followed me to this point, you might need it.
