8
If the UK does not accede to the Lugano Convention
or the Hague Convention, parties wishing to enforce
court judgments would be compelled to rely on
legacy bilateral enforcement treaties (there are
treaties between the UK and France, Belgium,
Germany, Austria, the Netherlands, Italy and
Norway) or local law in the state of enforcement.
' As the Brexit negotiations
continue into 2018 and the future
framework for the enforcement
of court judgments remains
uncertain, parties may turn to
arbitration and the security of
the New York Convention as a
safe harbour to avoid Brexitrelated
enforcement risk.'
Arbitration may also have a role to play as a dispute
resolution mechanism in the Withdrawal Agreement
and the Future Partnership Agreement (FPA)
between the UK and the EU. Negotiations on this
front are at an early stage and there are several
options on the table, including 'ad hoc' arbitration
before a three-member tribunal or the use of a
standing supranational court or joint tribunal.
The EU is pushing for a jurisdictional role for the
Court of Justice of the European Union (CJEU) where
disputes touch on EU law, but the UK has made
clear that Brexit will mark 'an end to the direct
jurisdiction of the CJEU'. For claims involving
citizens' rights, the two sides compromised in
December 2017 on a mechanism that facilitates
voluntary references to the CJEU by the UK courts
and promotes close co-ordination to avoid divergent
case law. It will be interesting to see what approach
is taken in other areas.
' It remains to be seen whether
the FPA will include an
investment chapter and,
if so, whether that will provide
for traditional investor-state
arbitration or the investment
court system used in recent
trade agreements between
the EU and Canada and Vietnam.'
Arbitration in the
age of Brexit
2