Reference mechanisms in dispute settlement clauses in international treaties are a rare feature and are generally not tested where they exist. However, for the EU institutions, the reference mechanism seems to offer a pragmatic solution if a party is not willing to accept the exclusive jurisdiction of the Court of Justice. The Council`s guidelines of 25 February 2020 for the negotiation of a new partnership agreement with the United Kingdom are proof of this pragmatism. Disputes over the new partnership agreement are referred to an arbitration tribunal; but “a dispute should raise a question of interpretation of EU law. . . . the Court of Arbitration should refer the matter to the Court of Justice as an exclusive arbiter of EU law for a binding decision. It is true that some non-COMMUNITY states absolutely do not want to accept the participation of the ECJ, if only through a reference mechanism.
But there are many areas in which direct dialogue between the arbitration tribunals and the Court of Justice could have the advantage of reconciling competing interests, if only in the area of future investment protection in the EU internal market. The UK-EU Withdrawal Agreement: DISPUTE Settlement and EU Powers Settlement (227 KB, PDF) The VA also establishes a dispute settlement procedure in which the UK and the EU disagree on the interpretation or application of the agreement, but which will come into force after the end of the transition period. In the event of a dispute, the UK and the EU will first try to resolve it in the Joint Committee. If this is not possible, the dispute may be referred to an arbitral tribunal which can make binding decisions. The European Court of Justice (ECJ) will present interpretations of EU law issues to the body. Non-compliance may lead to the imposition of a lump sum or outstanding penalty and non-compliance would give the complainant the right to suspend certain contractual obligations or elements of other agreements between the UK and the EU. The UK`s withdrawal agreements from the EU are covered by the withdrawal agreement (WA) concluded by the UK government and the EU in October 2019. The VA was ratified by the UK and THE EU in the days leading up to the UK`s withdrawal on 31 January 2020, and came into force immediately after the UK`s withdrawal. This document examines decision-making and dispute resolution in the UK`s withdrawal agreement from the EU. Following an introduction (section 1), Section 2 reprimands the controversial nature of the institutional mechanisms and, in particular, the ecSJ`s jurisdiction during negotiations, in order to create the necessary context for the decision-making and resolution of the withdrawal agreement`s disputes. Section 3 then presents aspects of the governance of the agreement in the form of diplomatic and technical institutional bodies that it sets up.
Section 4 is therefore devoted to dispute resolution provisions, which include both the role of the European Court of Justice and the new inter-party arbitration mechanism. Section 5 finalizes and summarizes the main results of the work. Given the many references to EU law, it is likely that a dispute in the context of the withdrawal agreement will raise questions about the proper interpretation and application of EU law. For example, if the UK adopts a subsidy programme including business assistance in Northern Ireland, the problem would be that these measures would comply with EU state aid rules, as interpreted by the ECJ. However, the need for a reference may be less likely if the current disagreement over the UK domestic market law were referred to an arbitration tribunal. The language of Article 174, paragraph 1 of the withdrawal agreement follows the language of Article 267 of the Treaty on the Functioning of the European Union (hereafter the TFUE).