The UK is currently party to The Hague due to its EU membership, but this will cease when the UK leaves the EU on 31 January 2020. However, as mentioned earlier, the UK and the EU have agreed that the UK will be treated as an EU member state during the transition period for the purposes of international agreements, which will include The Hague. The UK would have joined The Hague itself in the event of a no-deal exit immediately after the withdrawal date, but given the Withdrawal Agreement, it is now expected that the UK will withdraw its instrument of accession and (presumably) accede to it from the end of the transition period. The dispute settlement mechanism between the EU and the UK is set out in Title III of Part Six of the Withdrawal Agreement. The fundamental elements of this clause are similar to a standard arbitration clause. If there is a dispute over the interpretation of the Withdrawal Agreement and no solution can be found after political consultations in the Joint Committee (a body that oversees the implementation, application and interpretation of the Withdrawal Agreement in the UK and the EU), either party may initiate arbitration. The Withdrawal Agreement provides for this procedure to be heard before a five-member tribunal and administered by the Permanent Court of Arbitration. The procedure for setting up the arbitration panel requires the EU and the UK to jointly propose 10 names and 5 names each, from which a panel of 5 members is created (2 members are appointed by each party and a chair is then chosen by the panel from the common list of 5 people). The agreement also provides for the arbitration panel to communicate its “decision” to the EU, the United Kingdom and the Joint Committee within 12 months, in urgent cases within 6 months from the date of establishment of the arbitration panel. The Withdrawal Agreement provides (in Article 127) that Union law applies to and on the United Kingdom during the transition period, unless otherwise provided for in the Withdrawal Agreement, and any reference to EU Member States in Union law shall be understood as including the United Kingdom. EU law includes the various EU treaties, the general principles of EU law, EU legislation such as regulations and directives and (in importance) international agreements to which the EU is adjacent. There is a specific provision (in Article 129) that, during the transition period, the United Kingdom is bound by the obligations arising from these international agreements and that the EU notes the other parties to these agreements that the United Kingdom must be treated as an EU Member State for the purposes of these agreements during the transition period.
At first glance, the reference scheme of the Withdrawal Agreement seems excellent. However, this is not new for the EU. In fact, the reference mechanism in the Withdrawal Agreement is similar to the reference models of some Association Agreements between the EU and the former Soviet states (see e.B Article 403 of the EU-Moldova Association Agreement). In a broader sense too, there are, at least theoretically, dispute settlement clauses that would provide for the transfer from an arbitral tribunal to a permanent court. Section 5 of Section 5 of Part XI of the United Nations Convention on the Law of the Sea (`THE LOSC`) provides for a system for the settlement of disputes relating to mining in the international seabed area. Article 188, paragraph 2, of the LOSC provides that disputes concerning the interpretation or application of contracts governing activity in the seabed area may be subject to arbitration under the UNCITRAL Rules. The key element of Article 188(2)(C) is that the arbitral tribunal refers to the Seabed Disputes Chamber questions relating to the interpretation and application of the LOSC for a binding decision. This paper examines decision-making and dispute settlement in the UK`s withdrawal agreement from the EU. Once introduced (Section 1), Section 2 will co-capitulate on the controversial nature of the institutional mechanisms, and in particular on the competence of the CJEU during the negotiations, in order to provide the relevant context for the provisions of the Withdrawal Agreement relating to decision-making and dispute settlement. .