Thursday, 31 December 2020

Dispute Resolution under the Withdrawal Agreement


Jane Lambert

Art 167 of the agreement by which the UK withdrew from the European Union which was signed in January of this year ("the Withdrawal Agreement") requires the EU and UK at all times to endeavour to agree on the interpretation and application of that agreement and to make every attempt, through cooperation and consultations, to arrive at a mutually satisfactory resolution of any matter that might affect its operation.

Art 169 (1) of the Withdrawal Agreement further requires them to "endeavour to resolve any dispute regarding the interpretation and application of the provisions of this Agreement by entering into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution." The Joint Committee consists of representatives of the EU and UK under art 164 (1) of the Withdrawal Agreement and is responsible for the implementation and application of that agreement.  If no mutually agreed solution has been reached within 3 months after written notice has been provided to the Joint Committee in accordance with art 169 (1), the EU or the UK may request the establishment of an arbitration panel to resolve the dispute.

Art 171 (1) of the Withdrawal Agreement requires the Joint Committee to establish a list of 25 persons who are willing and able to serve as members of an arbitration panel before 31 Dec 2020.  Art 171 (2) provides:

"The list established pursuant to paragraph 1 shall only comprise persons whose independence is beyond doubt, who possess the qualifications required for appointment to the highest judicial office in their respective countries or who are jurisconsults of recognised competence, and who possess specialised knowledge or experience of Union law and public international law. That list shall not comprise persons who are members, officials or other servants of the Union institutions, of the government of a Member State, or of the government of the United Kingdom,"

By a decision dated 17 Dec 2020, the Joint Committee has appointed the following persons to serve as chairpersons of any arbitration panel that may be set up under these provisions: Corinna Wissels, Angelika Helene Anna Nussberger, Jan Klucka, Sir Daniel Bethlehem and Gabrielle Kaufmann-Kohler.  The EU has nominated the following ordinary members of such panel: Hubert Legal, Helena J√§derblom, Ursula Kriebaum, Jan Wouters, Christoph Walter Hermann, Javier Diez-Hochleitner, Alice Guimaraes-Purokoski, Barry Doherty, Tamara Capeta and Nico Schrijver.   The Britsih government has nominated Sir Gerald Barling, Sir Christopher Bellamy, Zachary Douglas, Sir Patrick Elias, Dame Elizabeth Gloster, Sir Peter Gross, Toby Landau QC, Dan Sarooshi QC, Jemima Stratford QC and Sir Michael Wood.

An arbitration panel must consist of t members (art 171 (3)).  The EU and UK shall each nominate 2 members from among the persons on the list established under art 171 (1). The chairperson shall be selected by consensus by the members of the panel from the persons jointly nominated by the EU and UK to serve as chairperson.

The parties have agreed to be bound by any ruling of the arbitration pane pursuant to art 175 and shall take steps to comply with the ruling within a reasonable time.

Anyone wishing to discuss this article or the Withdrawal or Trade and Cooperation Agreement generally may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

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