Brexit and Preferential Trade Agreements: Issues of Termination and Survival Clauses

Abstract

This article examines the fate of preferential trade agreements (PTAs) concluded between the United Kingdom (UK), the European Union (EU) and third States after Brexit. It examines EU-only and mixed PTAs separately. Regarding mixed PTAs, it is argued that Brexit will not lead to their automatic termination. The UK will possess all rights and obligations under these agreements, unless they contain provisions limiting their scope, such as respective powers and territorial application clauses, often found in bilateral mixed PTAs. The effect of the former is that the UK will remain Party to mixed PTAs but will not fall within the personal scope of rights and obligations thereunder. This situation gives rise to a series of questions, among others, whether the UK will be able to terminate the treaties and whether survival clauses will be triggered. It is argued that the UK will be able to rely on PTAs’ termination provisions and potentially Article 62 VCLT (fundamental change in circumstances), and that survival clauses are also triggered by permanent de facto termination events. Regarding EU-only treaties, it is argued the UK will be neither bound thereby under international law nor obliged to act in conformity with them under European law.