The UK published its position paper on “enforcement and dispute resolution” on Wednesday 23 August, which includes ending the “direct jurisdiction of the ECJ” while developing a “deep and special partnership.” Any future partnership “must respect the autonomy and integrity of both legal orders”.

The key point is a distinction between international dispute settlement and the EU version, which directly impacts national law.

Rather than giving concrete ideas, the paper sets out several options for dispute resolution. From joint committees, to arbitration models, to reporting and monitoring requirements, to references to pre- and post- agreement ECJ decisions, the UK paper suggests several possibilities, all of which relate to the kind of deal it will seek with the EU.

A close trading relationship with the EU, as set out in the paper on a customs union, would require some way of settling legal disputes that might arise over terms of trade, state aid rules and many other issues. If a third country wants to trade with the EU single market, it has to adhere to its rules, and the ECJ is responsible for enforcing those rules.

One of the possibilities floated is a free trade agreement which would probably be governed by dispute resolution mechanisms of joint committees and arbitration models, similar to those which the WTO uses. But only governments, not individuals or companies can bring cases to these bodies.

Another possibility is based on the European Free Trade Association court, which usually follows ECJ rulings but is not bound by them. The paper states that

“the value of such agreements lie where there is a shared interest in reducing or eliminating divergence in how specific aspects of an agreement with the EU are implemented in the EU and the third country respectively.”

However the EFTA court has to pay due account to ECJ rulings. On sensitive issues such as the rights of EU citizens in the UK, the European commission insists on the ECJ.

On supervision and monitoring, the paper suggests the option to create an independent supervisory authority which performs a similar role.