The UK is currently a party to the EU because of its EU membership, but this will cease when the UK leaves the EU on 31 January 2020. However, as has already been mentioned, the UK and the EU agreed that the UK would be treated as an EU member state during the transition period for international agreements, including The Hague. The United Kingdom would have gradually joined Hagues in the event of a withdrawal of the “no deal” immediately after the withdrawal, but in light of the withdrawal agreement, it is now expected that the United Kingdom will withdraw its accession instrument and adhere to it (probably) effectively at the end of the transition period. 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. The details of the arbitration clause alone would not be open to discussion.
Nevertheless, the Court of Arbitration is not the exclusive arbiter of disputes between the EU and the United Kingdom under the withdrawal agreement. A dilemma for the European Commission during the negotiations had to be the development of a dispute settlement mechanism that does not call into question the ECJ`s prerogative under the EU treaties on the interpretation of EU law and EU autonomy. Point 17 of the Council directive of 22 May 2017 on the negotiation of the withdrawal agreement states that any dispute settlement mechanism “fully respects the autonomy of the Union and its legal order, including the role of the European Court of Justice”. The simplest option would have been to confer jurisdiction on the Court of Justice. This is indeed the approach adopted in the first draft withdrawal agreement. But entrusting full and exclusive jurisdiction to the Court of Justice was not an option for the United Kingdom. Finally, the end of the ECJ`s competence remains one of the main priorities in terms of “withdrawal of control”, often referred to by British politicians. It might therefore have been difficult to approve the exclusive jurisdiction of the Court of Justice to sell it to British voters. 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.