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Post-Brexit governance is a key issue

One of the key areas of negotiation between the UK and the EU is that of ‘governance’: agreement on how both the proposed Withdrawal Agreement and any future relationship will be managed between the two bodies. Governance, as used by the EU and the UK in this context, is made up of three dimensions: management and supervision of the agreements concluded; dispute settlement, when one party disagrees with the other party’s interpretation of their obligations under any of the agreements concluded; and enforcement of dispute settlement, or how to ensure that a party that is found to be in the wrong under the agreed dispute settlement process can be compelled to change its behaviour, and whether it can be penalised for having been in the wrong.

Two governance systems will be needed

Two distinct ‘governance’ systems will need to be agreed as part of the Brexit negotiations.

Governance of the (temporary) Withdrawal Agreement

A governance mechanism will be needed to govern the primarily temporary ‘Withdrawal Agreement’. This is not merely a temporary governance system; while most aspects of the draft Withdrawal Agreement are indeed temporary, the provisions in Part 2 on citizens’ rights and the Protocol on Ireland and Northern Ireland will run, if not indefinitely, then at least for many decades (until there are no more EU or UK nationals benefitting from Part 2 of the agreement). Any agreements struck on those two issues will need to be governed for their entire duration.

Governance of the future EU-UK relationship

A governance mechanism will be needed for any future relationship agreement(s) concluded between the UK and the EU.

What has been agreed?

Both parties agree on certain aspects of the governance models needed for both the draft Withdrawal Agreement and the future relationship. For example, there appears to be broad agreement that overall management will fall to ‘joint committees’, and that there is to be a role for these joint committees in dispute settlement as well, at least in a ‘first stage’ of dispute settlement.

What has not been agreed?

However, there is substantial disagreement between the EU and the UK on both how a second stage of dispute settlement should function—and what, if anything, the role of the Court of Justice of the EU (CJEU) would be in that second stage—and how enforcement of settled disputes should operate.

These disagreements are amplified with regards to the draft Withdrawal Agreement, where the EU has put forth an explicit role for the CJEU in governance, not least because the draft Withdrawal Agreement still embodies many provisions of ‘EU law’ and the CJEU has declared itself to be the only binding interpretative authority of EU law.

The UK, however, has to date maintained that it is unacceptable that the ‘appeal’ body in dispute settlement of any agreement it concludes with the EU is one that represents and is made up of representatives of only the EU.

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