How to Resolve Disputes Arising from Brexit: Comparing International Models

Abstract

The question of how disputes arising from Brexit are to be resolved, and by which body, is one of the most sensitive issues in the negotiations on the UK’s withdrawal from the European Union and the envisaged future relationship between the UK and the EU. The legal issues related to withdrawal are further magnified in complexity due to the nature of the EU itself, which does not neatly fit into the category of a traditional international organization. The UK has repeatedly stated that it will not accept the continued role of the EU Court of Justice in the UK legal system after withdrawal. Any dispute settlement system must also respect the constitutional requirements of the EU legal order, most notably, by not infringing on the autonomy of EU law. This paper discusses some of the various models from international dispute settlement that could be used to inspire a dispute settlement system in the Brexit context. It discusses dispute settlement in the withdrawal agreement and the role of the Court of Justice during and after a transition period. It then discusses the challenges of designing a dispute settlement system for the future relationship agreement. While aspects of these various models could be replicated, there is no dispute settlement system that is fully appropriate to deal with the various complexities and challenges of Brexit. The paper discusses the possibility of setting up a standing international tribunal to resolve disputes arising from Brexit.