Sunday, 27 August 2017

Brexit - Negotiations Round 3 ~ Government publishes further papers

The Department for Exiting the EU (DExEU) has published a programme for the Third Round of Brexit negotiations to be held in Brussels from 28th to 31st August 2017.  In addition, the DExEU has published papers dealing with various aspects of Brexit - Article 50 and Negotiations with the EU

  Papers on Future Customs Union and Northern Ireland were the subject of this previous post (18th August).

The EU side of the negotiations basically operates in accordance with the European Council (Art. 50) Guidelines issued on 29th April 2017 and other official documents – see LIBRARY below.  At this stage, the EU guidance requires their negotiators to focus on Citizen's Rights, Financial Settlement and the Situation of Ireland.  The UK side appears to be keen to move the talks into other areas though the financial settlement ("divorce bill") is likely to be a major sticking point - The Guardian 28th August.   This May 2017 post looked at the financial situation as it appeared at that time. 

The Department for Exiting the EU lists seven "position papers" ; four "future partnership papers" and two White Papers - HERE.  The papers amply demonstrate the gargantuan task of dismantling the existing UK-EU arrangements and replacing them.  It remains to be seen what the future holds for UK-EU cooperation but the various papers make a start at teasing out some of the various problems and at suggesting some possible solutions.  This post looks briefly at three of the papers: Ongoing proceedings; Civil judicial cooperation; Enforcement and Dispute Resolution.

Proceedings Ongoing at time of Brexit:

The position paper on Ongoing Union judicial and administrative proceedings (13th July) seeks to achieve agreement with the EU on the handling of proceedings which are ongoing when the UK leaves the EU. The paper states - "The UK does not consider that the CJEU should remain competent to rule on cases on which it has not been seized before the day of withdrawal, even where the facts arose before withdrawal. This would lead to an uncertain environment in which it would be impossible to predict how long the CJEU would continue to issue judgments in respect of the UK. That is not in the interests of the autonomy of domestic law in the UK.  Of course, that does not mean that those cases should not be dealt with fairly and impartially. Where those cases concern individuals or businesses, the domestic courts in the UK will continue to determine cases in accordance with UK law as it stood at the time the facts arose, impartially, fairly and independently. The UK will provide certainty domestically by incorporating the EU acquis and CJEU case law into domestic law on exit.  This historic case law will be given the same binding, or precedent, status in UK courts as decisions of the UK Supreme Court, which can, where appropriate, depart from its previous judgments." 

Civil judicial cooperation following Brexit:

A Future Partnership Paper considers a framework for Cross-Border civil judicial cooperation.  This is a complex area requiring consideration of numerous international instruments such as those dealing with recognition of judgments, the law applicable to contracts, the law applicable to non-contractual obligations, matrimonial and parental responsibility and many other areas.

"The UK, as a non-member state outside the direct jurisdiction of the Court of Justice of the European Union (CJEU), will seek to agree new close and comprehensive arrangements for civil judicial cooperation with the EU.  We have a shared interest with the EU in ensuring these new arrangements are thorough and effective. In particular, citizens and businesses need to have continuing confidence as they interact across borders about which country’s courts would deal with any dispute, which laws would apply, and know that judgments and orders obtained will be recognised and enforced in neighbouring countries, as is the case now."

"The UK is clear that it is in the interests of both the UK and the EU for cooperation in this field to continue as part of the future partnership. Nonetheless, in response, Annex A of the future partnership paper presents the UK’s view of the principles that should govern the winding down of our existing relationship in the event that no agreement on a future relationship can be reached."

The EU has presented its position on civil judicial cooperation - see HERE (28th June 2017). 

Enforcement and Dispute Resolution:

A further future partnership paper looks at Enforcement and Dispute Resolution.  The agreements governing the UK’s withdrawal from, and future partnership with, the EU will cover a broad range of areas of cooperation. Those agreements should set out clear means by which the terms of the agreements should be implemented and enforced within the UK and the EU. They should also establish a mechanism for the resolution of disputes concerning those agreements.  As outlined in this paper, the approaches towards enforcement and dispute resolution should: maximise certainty for individuals and businesses;  ensure that they can effectively enforce their rights in a timely way; respect the autonomy of EU law and UK legal systems while taking control of our own laws; and  continue to respect the UK’s international obligations.  

EU Commission: 

The Commission is posting updates on Brexit - HERE

: Library :

EU negotiating position –

European Council (Art. 50) Guidelines issued on 29th April 2017

Department for Exiting the EU –

Law Society – 

General Council of the Bar – 


Articles –

Professor Steve Peers 22nd August - Cross Border Civil Litigation after Brexit

Monckton Chambers - Brexit Blog - Anneli Howard - Status of EU Law and ongoing role for the Court of Justice?  

Verfassungsblog by Tobias Lock.

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