Abstract :
[en] The Brexit negotiation is a quite new experience for the EU, but this certainly does not apply to the definition of the future trade relationships between the two partners. On the contrary, the EU possesses a long experience in this area. Furthermore, since 2012, to compensate the failure of the WTO Doha Round, it has developed a considerable activity in that field, and many innovative agreements have been concluded and implemented.
Curiously, the definition of a dispute settlement system quickly became one of the most contentious Brexit negotiation topics. This has not simplified the debates, since institutional systems only exist to support substantive agreements. It would have been better to discuss substance first, and institutions second. This being said, an inventory of the existing judicial solutions leads to distinguish different models: the EFTA court, the mixed EU/Ukraine system, the CETA panel system, the Asian agreements, the Switzerland and finally the Turkey options. There is little magic in all that. The deepest integration of third States into the single market requires the strongest dispute settlement system, for reasons directly linked to legal security.
It appears that both parties have developed contradictions during the Brexit negotiations. The UK persistently expresses a desire for strong integration and weak institutional constraints, that cannot be accepted by the EU, both for legal and political reasons. The EU has absolutely no global vision of the long term institutional problem. First, from the conclusion of the EU/Ukraine agreement, there has been no impact assessment of the different available solutions. Second, the multiplication of various judicial solutions in various trade agreements could easily become the source of a new legal disorder. The EU presently runs the risk of conceiving an archipelago of scattered judicial solutions without much coherence and efficiency.
The UK will not be considered as an usual neighbourhood partner for the EU. Its economy is much bigger than the other partner countries, it is more developed, and nearer. The legal problems that this implies will be most probably different, more numerous and more litigious. In a nutshell, Brexit should be seen as an additional reason to revisit the system of trade agreements for the whole EU neighbourhood, and it has not until noOn 29 March 2017, the UK Government served formal notice under Article 50 of the Treaty on European Union to end the UK’s membership of the Union. Such notice started a two-year period at the end of which the UK will cease to be a member State. During the upcoming negotiations of a new and necessary trade agreement, the model of dispute settlement is likely to become a bone of contention and one of the most hotly contested issues. Written mainly for operational purposes, this paper examines various solutions, and also tries to determine where the EU’s interests lie.
