Not only footballers become anxious when time starts running out. Both the Chequers Plan and the White Paper on the UK’s future relationship with the European Union confirm that.
Trade agreements require mechanisms to make the deal work. On this, the White Paper provides that in case of a dispute both Britain and the EU should have the option of referring the issue to an “independent arbitration panel” which would include arbitrators from both sides. The decision of the panel would be binding on the parties. Where the UK and the EU had agreed to retain a “common rulebook,” the UK would recognise that the European Court of Justice is supreme on the interpretation of EU law, and thus in these instances there should be the option to refer questions to the ECJ, either by mutual consent from a “Joint Committee,” or from the arbitration panel. The dispute would then be resolved by the committee or panel in a way that is consistent with the ECJ’s interpretation.
At first glance, this proposal is as surprising as it is original. Anyone who takes a close look, however, will see that this largely corresponds to an approach that the Swiss government is currently trying out. In fact, late last year, the EU Commission proposed an arbitration mechanism to Switzerland. The Swiss would like to improve their relationship with the EU, and are in a similar situation to post-Brexit Britain as regards dispute resolution.
However, the Swiss have the luxury that they are still playing in regular time. Their network of bilateral agreements with the EU stands. In 2008, the EU informed Switzerland that going forward it must accept a non-national supervisory and court mechanism. Negotiations began only in early 2014, but since no solution has been found, no new market access agreement has yet been concluded.
Both the proposal by the Swiss government and the UK White Paper appear to be modelled on the mechanisms found in the EU’s Association Agreements with Ukraine and Moldova. According to these two treaties, a dispute shall be resolved by a binding decision from a panel of three arbitrators. If, however, the dispute concerns the interpretation and application of a provision relating to “regulatory approximation,” i.e. technical barriers to trade, customs facilitation, public procurement or competition, or which otherwise imposes…