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Government seeks new approach to enforcement and dispute resolution post-Brexit

Date:24 AUG 2017
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The government has confirmed that the direct jurisdiction of the Court of Justice of the European Union in the UK must end at the point of withdrawal and that it will seek to agree special arrangements with the EU for implementing and enforcing any agreements with the EU post-Brexit, as well as agreeing mechanisms for resolving disputes. The Department for Exiting the European Union has issued a policy paper, 'Enforcement and dispute resolution', setting out examples for how the UK and EU could supervise and enforce the provisions of the EU withdrawal agreement and resolve any disputes arising from this or future arrangements through new dispute resolution mechanisms. It also highlights the need to agree arrangements for judicial supervision, enforcement and dispute resolution of any interim deal. Lawyers warn that if such an arrangement is not agreed upon it could result in lengthy litigation regarding choice of jurisdiction and law.
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In the position paper, the government says there is no precedent or mandate by EU, UK or international law which demands that enforcement or dispute resolution of future UK-EU agreements fall under the direct jurisdiction of the Court of Justice.

Earlier in the week the department published 'Providing a crossborder civil judicial cooperation framework', a paper which considers a cross-border civil judicial cooperation framework with the EU post-Brexit.

Daniel Eames, a partner and expert in international family law with national firm Clarke Willmott LLP, said:

'Whilst these two papers recognise the need for certainty for individuals and businesses once the UK leaves the EU, and therefore the need for the reciprocal enforcement of UK decisions in the EU and vice versa, they ignore the big question of why the other EU member states would sign up to such an arrangement when the government’s proposals remove the role of the CJEU as the ultimate arbiter of disputes between UK citizens/business and EU citizens/business. Even if the other EU member states will sign up to this, how long will it take? Crucially the paper is silent on what happens in the meantime.

This has the potential to leave families and children in complete limbo in cross-border cases while the government seeks to negotiate a bespoke arrangement with 27 other EU states which could take many years.

The preferred option would be for us to remain fully signed up to the EU regulations and for the CJEU to remain the ultimate appeal court in the civil sphere. At the very least, the role of the CJEU should remain in place until any new arrangements come into force. It would help if the government could come out and say that now.

Also, the paper ignores the fact that EU law is constantly evolving. At the moment, negotiations are ongoing within the EU to revise Brussels II which deals with the recognition and enforcement of divorces and orders concerning children throughout the EU. If we just incorporate existing EU law into our domestic legislation, we will almost immediately be out of step with the rest of Europe who will be running a fast track system in respect of the return of abducted children and the enforcement of custody orders in cross-border cases. Also, we will have no say as to how this law develops.

Unfortunately the paper does not meet the government’s aims of maximising ‘certainty for businesses and individuals’ and ensuring they "can effectively enforce their rights in a timely way". By removing the existing structure, they will be causing the opposite effect. The softening of the government’s approach is to be welcomed but it does not meet the problem or at least won’t for some time.'