Thread by @Raphael_Hogarth

THREAD: Disagreement on the ECJ's role remains one of the biggest hurdles in #Brexit talks. This is how to vault it.
instituteforgovernment.org.uk/publications/d…

There will be fun graphics and a moody photo of me in a carefully chosen shirt along the way. Stay with me.

Basics: UK and EU need a dispute resolution mechanism to sort disagreements about the meaning and implementation of the Brexit deal(s).

The Commission’s proposals? The ECJ can end up ruling on *anything* in the withdrawal agreement.

The UK shouldn’t accept full ECJ oversight. As ECJ said itself in Op 1/91, the ct’s day job is to achieve EU’s own objectives. Not neutral.

What then? Option 1: ask the EFTA Court, with UK judges added, to interpret the withdrawal deal for the UK. ECJ does it for the EU.

‘Docking’ to the EFTA Court and the EFTA Surveillance Authority in Brussels should be negotiable because the EU accepts these institutions.

The EFTA institutions are also considered less interfering in states’ domestic affairs than the EU institutions.

BUT EFTA Court has close relationship w ECJ, and the system allows for cases to end up before the EJC in some circs. Red line alert 👇🏻

Option 2: build new, EFTA-style court. Just as a tribunal of 🇳🇴/🇱🇮/🇮🇸judges interpret their deal w EU, mew court of 🇬🇧judges could do for us

A UK-only court to replace the ECJ scores well on ‘taking back control’. But it looks like the Brits marking their own homework.

And anyway, it would probably still have to provide for a ‘nuclear option’ in which unresolved disputes on EU law could be kicked to ECJ.

Option 3: a joint court. An EU judge, a UK judge, and someone else. This would be fine for things that don’t relate to EU law.

But a joint court would be *very, very difficult* for anything that does relate to EU law.

The ECJ is a jealous guardian of its monopoly on the interpretation of EU law in the EU. It won’t play second fiddle to a UK-EU joint court.

That’s because of the EU “legal autonomy”. If we propose a setup that binds the ECJ on EU law eg citz rights), the ECJ WILL STRIKE IT DOWN.

The ECJ has form on this. It struck down proposals for a joint EU-EFTA Court. See this section of my paper. instituteforgovernment.org.uk/publications/d…

Option 4: what about doing it Swiss-style? No lawyers. Committees of diplomats and politicians resolve disputes.

In short: will not work. No good. The EU hates this arrangement with the Swiss and has suspended negotiations until it is replaced.

In any event, the UK wouldn’t want dispute resolution by committee. Disputes linger unresolved for years. Bad for legal certainty.

Option 5: ad hoc arbitration. A new panel of three arbitrators (one UK, one EU, one other) is convened to resolve each dispute.

That’s par for the course in trade deals, and David Davis is keen. But this is worse for legal certainty than a court.

And, as ever, ECJ is never going to put up with ad hoc arbitral tribunals calling the shots on EU law. So this’d be tough on citz rights.

If you need a handy cheat-sheet on dispute resolution after #Brexit, here it is.

If you want the tech specs of each of the precedents and possible directions for innovation, here it is. (Pls attribute @instituteforgov.)

If you want a discussion of options for dispute resolution after Brexit, & a toolkit to design more, read this
/ENDS
instituteforgovernment.org.uk/publications/d…