Brexit Sovereignty and its Dead Ends

In more ways than one, the Trade and Cooperation Agreement (TCA) concluded by the EU and the UK is a typical trade agreement. Its commitments are international in nature; its provisions create no directly effective rights and obligations for private parties to enforce under domestic law. The TCA thus turns from the central innovation of EU law, an innovation, which also lies at the heart of the Single Market. It is a price the UK is willing to pay for throwing off what it considers the yoke of EU law. This is not out of tune, perhaps, with a wider popular pushback against globalisation and the institutions perceived to represent it. But has Brexit truly returned control of its own laws to the UK, in both a formal and a practical sense? This article analyses the TCA as a balancing act between the parties’ ‘right to regulate’ and the EU’s demand of a level playing field, the ‘Brussels effect’ likely to constrain British attempts in the direction of regulatory divergence, and what has become of the formal effect of EU law in the laws of the UK

Prolonging the acquis is a blueprint for the Brexit transition

In a report published in late 2017, Piet Eeckhout and Oliver Patel assess the options for a Brexit transitional arrangement. They argue that the most realistic option is for the full body of EU law to continue to apply in the UK, while the UK simultaneously ceases to be an EU member state. Their insights serve as a good explanation of the recent row over EU citizens’ residency rights once the transition period beings

The Scales of Trade--Reflections on the Growth and Functions of the WTO Adjudicative Branch

This essay argues that, increasingly, international economic law develops through adjudication. It therefore aims to offer some reflections on the growth and functions of the WTO adjudicative branch, which is of central importance to international economic law, by reviewing a number of important developments in the case law. The essay shows that important policy questions are submitted to adjudication. It aims to identify some of those questions, and to establish some parameters for WTO adjudication. It focuses in particular on the case law concerning the GATT and GATS General Exceptions, which, notwithstanding their generality and indeterminacy, occupy a central position in the resolution of international trade disputes. The essay takes issue with the use of economic concepts such as cost-effectiveness and cost--benefit balancing to characterize the adjudicative process of applying the General Exceptions. It argues that these concepts are inappropriate for analysing questions about trade versus environment/health/morals, etc. Instead, the essay suggests that legal theory offers further guidance for developing tools aimed at limiting adjudicative discretion. The essay approves of the weighing-and-balancing test which the Appellate Body has introduced, and contends that there is now a richer toolkit for tackling these sensitive cases and questions. Oxford University Press 2010, all rights reserved, Oxford University Press.