The Northern Ireland Protocol. The ‘Backstop’

The most contentious part of the draft withdrawal agreement signed off by the Cabinet last night is the Northern Ireland Protocol.

This is helpfully explained by the Commission’s press release of 14 November,

Highlighted in italics are those elements that are likely to cause the DUP to vote against the Draft Withdrawal Agreement when it comes before the House of Commons.

“If an agreement on the future EU-UK relationship is not applicable by 31 December 2020, the EU and the UK have agreed that a backstop solution will apply until such a time as a subsequent agreement is in place.

Alternatively, the UK may, before 1 July 2020, request an extension of the transition period. Such a request would be dealt with under article 132 of the Withdrawal Agreement and must therefore be agreed by the Joint Committee.

In the scenario where the “backstop solution” would apply, this would mean the following in practice:

  • There will be a single EU-UK customs territory. This will avoid the need for tariffs, quotas or checks on rules of origin between the EU and the UK.
  • The EU and the UK have agreed on a set of measures to ensure that there is a level playing field between the EU and the UK.
  • The Union’s Customs Code(UCC), which sets out, inter alia, the provisions for releasing products into free circulation within the EU, will continue to apply to Northern Ireland. This will ensure that Northern Irish businesses will not face restrictions when placing products on the EU’s Single Market.
  • The UK in respect of Northern Ireland will remain aligned to a limited set of rules that are related to the EU’s Single Market and indispensable for avoiding a hard border: legislation on goods, sanitary rules for veterinary controls (“SPS rules”), rules on agricultural production/marketing, VAT and excise in respect of goods, and state aid rules.

Is there any review mechanism foreseen? Can the EU or the UK ask to stop applying the backstop in whole or in part?

If at any time after the transition period, the EU or the UK considers that this Protocol, in whole or in part, is no longer necessary, it may notify the other party, setting out its reasons. The Joint Committee [as established in Article 164 of the Withdrawal Agreement] will consider the notification and may seek an opinion from institutions created by the Good Friday (Belfast) Agreement 1998. Following discussions in the Joint Committee, the EU and the UK may decide jointly that the Protocol, in whole or in part, is no longer necessary to achieve its objectives.”

The UK would be unable unilaterally to withdraw from the Backstop.

During the Backstop the UK would be unable to implement any trade agreements it had negotiated with non-EU states. Another red line for some Members of Parliament.




The Draft Withdrawal Agreement and Shipping Law


They came, they argued, they agreed (but now minus Raab and McVey).

This evening the Cabinet signed up to the Draft Withdrawal Agreement, all 586 pages of it – and also the seven page outline of the Political Declaration on the future relationship between the United Kingdom and the European Union.

All eyes are now focussed on the special status of Northern Ireland in the ‘backstop’ in the Agreement and on the inability of the UK unilaterally to withdraw from that agreement in article 21 of the Northern Ireland Protocol.

Less controversial are the provisions of the Agreement on Jurisdiction, Applicable Law, and Insolvency that are to be found in Articles 66 and 67, as follows.

Applicable law.


Applicable law in contractual and non-contractual matters

In the United Kingdom, the following acts shall apply as follows:

(a) Regulation (EC) No 593/2008 of the European Parliament and of the Council shall apply in respect of contracts concluded before the end of the transition period;

(b) Regulation (EC) No 864/2007 of the European Parliament and of the Council shall apply in respect of events giving rise to damage, where such events occurred before the end of the transition period.



Jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities

  1. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings pursuant to Articles 29, 30 and 31 of Regulation (EU) No 1215/2012 of the European Parliament …the following acts or provisions shall apply:

(a) the provisions regarding jurisdiction of Regulation (EU) No 1215/2012


Article 67

  1. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following provisions shall apply as follows:

(c) Regulation (EU) 2015/848 of the European Parliament and of the Council shall apply to insolvency proceedings, and actions referred to in Article 6(1) of that Regulation, provided that the main proceedings were opened before the end of the transition period;

For financial service providers, the following statement on p2 of the Political Declaration is of interest.


“Commencement    of    equivalence    assessments    by    both    Parties    as    soon    as    possible    after    the    United     Kingdom’s     withdrawal     from     the     Union, endeavouring     to     conclude     these     assessments     before the    end    of    June 2020.”


Back to the common law. Jurisdiction and judgments if there’s a ‘no deal’ Brexit.



On 13 Sept 2018 the UK government stated that in the event of a no-deal Brexit, it would repeal most of the existing civil judicial cooperation rules and instead use the domestic rules which each UK legal system currently applies in relation to non-EU countries. This is due to the lack of reciprocity from EU Member States that would pertain after ‘exit day’.

So, for the bin, would be:

The 2012 Brussels Regulation (Recast). Back to common law. The return of the anti-suit injunction to protect London arbitration agreements from suits commenced in EU states.

The Enforcement Order, Order for Payment and Small Claims Regulations: which establish EU procedures for dealing with, respectively, uncontested debts and claims worth less than EUR5,000

The EU/Denmark Agreement: which provides rules to decide where a case would be heard when it raises cross-border issues between Denmark and EU countries, and the recognition and enforcement of civil and commercial judgments between the EU and Denmark

The Lugano Convention: which is the basis of our civil judicial relationship with Norway, Iceland and Switzerland.

Most of the Insolvency Regulation, which covers the jurisdictional rules, applicable law and recognition of cross-border insolvency proceedings, although the EU rules that provide for the UK courts to have jurisdiction where a company or individual is based in the UK will be retained.

In addition, last year shipping minister John Hayes told members of the UK Major Ports Group that the hated 2017 Port Services Regulation will be “consigned to the dustbin” in the UK due to Brexit.


Staying out of the bin will be Rome I and Rome II on choice of law in contract and non-contractual matters. No reciprocity is involved with these regulations.

The Government intends the UK to accede to the 2005 Hague Convention on Choice of Court Agreements in its own right and anticipates that the convention would come into force across the UK by 1 April 2019. This is somewhat of a surprise as article 31 (a) provides the convention to come into effect for each state ratifying it on the first day of the month following the expiration of three months after the deposit of its instrument of ratification, acceptance, approval or accession. So, 1 July 2019.

The Convention does not apply to: consumer or employment contracts; insolvency; carriage of passengers or goods; maritime pollution; anti-trust/competition; rights in rem in immovable property, and tenancies of immovable property; the validity, nullity or dissolution of legal persons, and the validity of decisions of their organs; various matters concerning the validity or infringement of intellectual property rights; the validity of entries in public registers; arbitration and related proceedings




Brexit leaks boost the pound


Two pieces of leaked news regarding Brexit have seen the pound rise to US $1.32 today.  The first, reported in yesterday’s Times, was that agreement had been reached by the EU and the UK on financial services after Brexit. Nice, when it happens but of no immediate relevance. Any future relationship between the UK and the EU will have to be negotiated after Brexit. For now, the urgency is about the terms on which the UK leaves the EU and its position during the transition period after exit day while the new trade treaty is being negotiated with the EU. The withdrawal agreement covers: the position of EU citizens in the UK on exit day and the position of UK citizens in EU member states on exit day; the ‘divorce’ settlement to be paid by the UK; the avoidance of a hard border on the island of Ireland; the role of the CJEU in supervising the withdrawal treaty. It is the third of these that is proving most problematic.

Today’s news that the EU may be prepared to compromise on this issue is certainly of immediate relevance. The Financial Times reports that the E.U. is ready to offer the UK a “bare-bones” U.K.-wide customs union with the E.U. in the event of the Irish backstop being triggered.

But getting a withdrawal treaty agreed with the EU is one thing. Getting it through the UK Parliament is another.

This could be the last time? Clocks go back in the UK. Brexit Update (5).


On September 12, 2018, the European Commission issued a draft directive which proposes the abolition of seasonal clock changes in the European Union. Each Member State would have to decide whether they want to stay on summer time or not, and then stick to it. If the directive is approved the last clock change in the EU will be on Sunday, March 31, 2019, two days after ‘exit day’. Will this affect the UK? That depends on whether there is a hard Brexit or not.


The UK and the EU are currently negotiating a treaty of withdrawal to cover the period after ‘exit day’ during which the future relationship between the parties will be negotiated.  During this period, which is scheduled to end at the end of 2020 (although it now seems possible there may be a further extension to this time) the UK would remain subject to EU law, including new legislation coming into effect in the transition period, but would not participate in the EU institutions. The UK would continue to benefit from the free trade agreements negotiated by the EU with third party states but would be free to start negotiating its own such agreements, although these could not come into effect until the end of the transition period. At this stage a new agreement should come into effect between the UK and the EU – or maybe not. Politically it is highly uncertain whether a withdrawal agreement will be capable of conclusion in which case the UK will leave the EU on ‘exit day’ in a ‘cliff-edge’ deal.


Prime Minister Theresa May has stated that the agreement is 95% concluded – but it is the 5% that is the sticking point. That is the ‘Irish Question’ which did for Gladstone. The question now is how to avoid a hard border between Northern Ireland, which as part of the UK will no longer be in the EU, and the Republic of Ireland, a member state of the EU. An open border is a fundamental part of the 1998 Good Friday Agreement which brought an end to the troubles. The UK and the EU have very different views on the meaning of article 49 of which states.

The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.”

This is the so-called ‘backstop’ which the EU would want to be permanent, and the UK would wish to be limited in time. The EU contemplates a customs union applying within Northern Ireland which would be politically unacceptable to the Democratic Unionist Party, on whose support Theresa May’s is dependent – the metaphorical border in the Irish Sea. Accordingly, the prospects of a cliff-edge Brexit look increasingly likely.[1]

However, an abrupt exit would not have to lead to a hard border on the island of Ireland. The EU will insist that the Republic erects such a border but that would be politically impossible for the Republic. Chancellor Philip Hammond has said that the UK would be required under WTO Rules to erect such a border. Up to a point, Chancellor. There is no WTO institution policing compliance with its rules. It is up to individual members to bring proceedings for violation of WTO rules. In the case of border between the North and the South that would lead to potential suits by non-EU states for violation of the principle of ‘most favoured nation’. However, the UK would be able to raise as a defence the security principle in Art. XXI of GATT, recently invoked by President Trump to justify imposed tariffs on imported steel and aluminum and threatened ones on imported cars. In any event it could just decide not to comply with any WTO award against it – as the EU has done for 20 years in relation to its ban on the import of hormone treated beef from Canada, the US– and take the consequences of trade sanctions from the other party.

For Banks and Insurers a cliff-edge Brexit would mean the immediate loss of ‘passporting’ rights – hence the rush of P&I Clubs setting up subsidiaries in EU states, such as Ireland, the Netherlands, Cyprus. There is even talk that national regulators in EU states may feel required to prevent payments being made out under policies with UK insurers that were written before ‘exit day’ although this would very probably constitute a breach of art 1, Protocol 1 of the ECHR as amounting to an expropriation of contractual rights which constitute ‘possessions’. [2]


[1] As of 26 October 2018 a leading bookmaker is offering odds of 8/11 that the withdrawal agreement will be approved by the Council of the EU and the UK Parliament before ‘exit day’ and evens that it won’t. Odd of 4/11 for Theresa May still to be PM on 1 April 2019, 5/6 for the UK to rejoin the EU by 2027, 15/8 for a second referendum to be held by the end of 2019 in the UK.


[2] This provides that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”


Brexit update (4). A “third way” for the UK parliament?


As we all know, the UK government gave notice of withdrawal from the EU under article 50 on 29 March 2017. Article 50(3) provides “The Treaties shall cease to apply to the State…from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification…”. The European Union Withdrawal Act 2018 provides that parliament will vote on any agreement between the UK government and the EU Council (if there be any such agreement). If parliament votes against the agreement and no alternative is proferred the UK leaves the EU at 11pm on 29 March 2019, the so-called ‘Brexit forte et dure’.

However, there may be a third option open to members of parliament wishing to take back control – to vote to revoke the notification under article 50 and to stay in the EU – at least for now. The UK government and the Commission take the view that a notice of withdrawal, as is the case with a similar notice under a time charter, once given cannot be revoked. But are they right? In Andy Wightman MSP v Secretary of State for exiting the European Union[2018] CSIH 62 the First Division, Inner House, Court  of Session has referred this question or a preliminary ruling under Article 267 of the Treaty on the Functioning of the EU to the Court of Justice of the EU under the expedited procedure. The question framed is:

“Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU”.

If the CJEU rules that unilateral revocation is possible, then we are in for interesting times in 2019.


Brexit Update (3). Maritime organisations.


‘Exit day’ will see changes in two maritime organisations of which the UK is currently a member.

  1. The International Maritime Organisation (‘IMO’).

The IMO is a UN body of which most countries, and all EU member states, are members. The EU is not a member but the Commission has observer status. However, the Commission ensures that Member States follow a pre determined EU line in meetings of the IMO as outlined in this extract from the European Parliament’s 2016 briefing

“To ensure that the EU speaks with one voice in IMO meetings, it applies an informal process for coordinating the positions of the EU Member States, Norway and Iceland.For most IMO meetings, the European Commission prepares a coordination paper, suggesting the positions for the Member States to follow. Moreover, several weeks before key IMO sessions, a coordination meeting is held in Brussels for Member States’ representatives to agree on joint positions. In practice though, while during IMO meetings the EU Council presidency advances the coordinated position, individual EU Member States can take the floor and express their own position, sometimes departing slightly from the joint one.”

The key  word in the last sentence is ‘slightly’.  EU Member States have to toe the line in IMO meetings both in how they vote and what they say.

Not any more, for the UK, after ‘Exit Day’.

  1. The European Maritime Safety Agency (EMSA)

The European Commission proposed to set up a European Maritime Safety Agency (EMSA) in the aftermath of the “Erika” accident. EMSA was established by Regulation 1406/2002 ,  on 27 June 2002 and entered into force in August of the same year. EMSA provides technical and scientific assistance to the European Commission in the fields of maritime safety, maritime security, prevention of pollution and response to pollution caused by ships. The UK will cease to be member of EMSA as of ‘exit day’. However, article 17 of Regulation 1406/2002 ,  provides for participation of non-EU countries  “which have entered into agreements with the European Community, whereby they have adopted and are applying Community law in the field of maritime safety and prevention of pollution by ships.”

And that means accepting continuing role of CJEU, so not very likely.


Brexit Update (2)


In the absence of an agreement with the EU, Brexit will have an immediate impact on UK seafarers and on shipping services from the UK to ports within the EU.

  1. UK seafarers. The STCW requires crew members to have a Certificate of Competence which must be renewed every five years. The UK allows crew members who have trained outside the UK to work on a UK vessel if they have a certificate of equivalent competency issued by the Maritime and Coastguard Agency. Under EU law there are two procedures for recognising seafarers’ qualifications. Under EC Directive 2005/45/EC there is mutual recognition by EU Member States of certificates issued to seafarers by other Member States which must be accompanied by an endorsement by the recognising State. Certificates from non-EU countries may be endorsed under EC Directive 2008/106/EC. After exit day existing UK endorsed certificates would enable UK seafarers to work on vessels flagged with EU Member States but on expiry renewal would be under the procedure set up under Directive 2008/106. EU Member States would be required to write to the Commission if they wish to continue accepting new UK certificates of competence.
  2. Shipping services.  Article 6 of EC Regulation 725/2004 requires shipping companies (including ferries carrying passengers and lorries) prior to entering an EU port to submit security information, such as: particulars of the ship; last 10 port facilities of call; crew and passenger list. Article 7 allows a Member State to exempt companies which operate scheduled services between ports in their territory and that of another Member State. After ‘Exit Day’ no exemptions will be available for vessels operating scheduled services from the UK.

Brexit update.


July saw the passing of the European Union (Withdrawal) Act 2018 which will repeal the European Communities Act 1972 (ECA) but retain EU legislation as part of UK law. The Act will come into effect on “exit day” which has been defined as 29 March 2019 at 11.00 p.m. Directly applicable EU law, which is currently given effect through s.2(1) of the ECA is referred to as ‘converted legislation’ and covers: EU regulations; EU decisions; EU tertiary legislation; Direct EU legislation as it applies with adaptations to the European Economic Area; and any other rights which are available in domestic law by virtue of section 2(1) of the ECA, including the rights contained in the EU treaties, that can currently be relied on directly in national law without the need for specific implementing measures. This corpus of EU law will be converted and incorporated into UK law immediately before exit from the EU. The second category of retained legislation is ‘preserved legislation’ which comprises: regulations made under section 2(2) or paragraph 1A of Schedule 2 to the ECA; other primary and secondary legislation with the same purpose as regulations under section 2(2) ECA; other domestic legislation which relates to the above, or to converted legislation, or otherwise relates to the EU or EEA. This corpus of legislation will be preserved as it exists immediately before exit from the EU.

Section 6 of the EUWB sets out the relationship between the CJEU and domestic courts and tribunals after exit. The validity, meaning or effect of any retained EU law is to be decided in accordance with any retained case law and any retained general principles of EU law, and having regard to the limits, immediately before exit day, of EU competences. Decisions of the CJEU made after exit day will not be binding on domestic (UK) courts. Domestic courts cannot refer cases to the CJEU on or after exit day and are not required to have regard to anything done by the EU or an EU entity on or after exit day. However, domestic courts, when interpreting retained EU law, will be able to consider post-exit EU actions including CJEU case law if they consider it appropriate. The UK Supreme Court (UKSC) and the High Court of Justiciary (HCJ) are not bound by either retained general principles or retained CJEU case law. In deciding whether to depart from any retained EU case law, the Supreme Court or the High Court of Justiciary must apply the same test as it would apply in deciding whether to depart from its own case law.

Section 7 gives ministers delegated powers to correct operability problems in converted and preserved legislation by way of statutory instrument, and to transfer the functions of EU authorities to UK public authorities and of creating new UK public authorities to take on those functions.

The Act means that most existing EU law will continue to apply as domestic law after exit day, although civil servants are going to have a demanding task making the necessary amendments to make sense of this transition – for example, references in the 2012 Brussels Regulation (recast) on Jurisdiction and Judgments will need to redefine ‘Member state’ so as to include the UK. However, there is no reciprocity in this exercise and this will be particularly felt with regards to the provisions of the Brussels Regulation on reciprocal enforcement of judgments. The UK will still enforce a French judgment under these provisions but France will no longer return the favour. It is likely that some reciprocity will be regained by the UK applying to accede to the 2005 Hague Convention on Choice of Court Agreements which would take about three months, although the process cannot be initiated until after Exit Day. The current parties to the Convention are the EU, Singapore, Mexico. The UK is currently party to the Convention through its membership of the EU but will cease to be a party on Exit Day. Many areas of maritime law fall outside the Convention. Article 2 excludes, inter alia, e) insolvency, composition and analogous matters; f)  the carriage of passengers and goods; g) marine pollution, limitation of liability for maritime claims, general average, and emergency towage and salvage; h) anti-trust (competition) matters; i)  liability for nuclear damage; j) claims for personal injury brought by or on behalf of natural persons; k) tort or delict claims for damage to tangible property that do not arise from a contractual relationship;

Arbitration will be unaffected. Enforcement of awards is subject to the 1958 New York Convention. The EU Regulations on choice of law in contract and tort, Rome I and Rome II, will also continue to function in EU courts as per usual as their choice of law rules are of universal application and are not tied to EU Member States.

After Exit Day the UK will be free to amend or repeal parts of this domesticated corpus of EU law. Two pieces of legislation immediately come to mind as candidates for this exercise. First, the universally unpopular  Regulation (EU) 2017/352 on Port Services which is due to come into effect five days before Exit Day. Second, the Brussels Regulation (recast) on Jurisdiction and Judgments could be amended, by including arbitration proceedings in art. 25, so as to permit once again the use of anti-suit injunctions to restrain proceedings commenced before the courts of an EU Member State in breach of a submission to arbitration in the UK.

Arbitration post-Brexit

The Lord Chief Justice a couple of days ago gave a bullish speech in Beijing about London as an arbitration centre post-Brexit. Despite the self-serving nature of the speech, one suspects he may well be right. At least post-Brexit we should with a bit of luck get shot of the ECJ control over jurisdiction; be able to abandon The Front Comor [2009] EUECJ C-185/07, [2009] 1 AC 1138 and go back to issuing anti-suit injunctions against Euro-proceedings that infringe London arbitration agreements; and possibly get rid of tiresome Brussels I provisions that make life difficult for P&I clubs which want to insist on arbitrating here (see, for details, this post). But as usual, to know the details we have to wait and see.