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