Britain may seek to end the direct jurisdiction of European courts, but both it and the EU still need to recognise each other’s judicial authority for cross-border disputes post-Brexit. Ministers have sought to do this in their latest policy paper out today, sketching out their vision for “coherent common rules” to govern the interaction between legal systems.
This might sound drier than other issues like the infamous “Brexit bill”, but it is important legally. Business groups are relieved, with the Institute of Directors’ Allie Renison pointing out that the cross-border judicial co-operation is needed to give firms “certainty about the process [of doing business internationally] if something goes wrong”. A failure to reach an agreement has other implications, like divorcing couples in different countries potentially having to have two parallel hearings in their home country for it to take effect.
Lawyers are split over the value of the British government’s offer on judicial co-operation. Clyde & Co’s Ben Knowles notes that “nothing much should change” over commercial disputes, while David Cameron’s former legal advisor Andrew Hood, now a senior lawyer at Dechert, warns it provides “little reassurance on how to avoid the cliff edge from the date of Brexit”. By contrast, barrister Rupert Myers writes on the Telegraph that their paper is “sensible in seeming to seek an outcome which is as close to the status quo as political reality allows”.
This legal offering is a mere prelude of what is to come tomorrow, when the British will lay out how they intend to resolve disputes with the EU without having to rely on the European Court of Justice. Michel Barnier has indicated in the past that he could accept a solution like the Efta court, as it tends to “ dovetail” with European law, although it wouldn’t necessarily be accepted by Tory Eurosceptics – who have raised concerns about the body “ rubber-stamping” ECJ rulings. The bloc’s chief Brexit negotiator has been on confident form today, judging by his taunting tweets. So will he keep “ the upper hand” in negotiations (as George Osborne seems to predict)? Monsieur Barnier will want to ensure European law is not disregarded, but in turn the British will be keen that he respects their authority.
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