Choukroune, Leila Delphine

Palit, Amitendu

Portsmouth University Research Portal (Pure)

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Special Issue MJIEL 
 
 
UK-INDIA post-Brexit  
Trade and Power Democracy 
 
Editors 
 
Prof. Leïla Choukroune  
http://www2.port.ac.uk/school-of-law/staff/professor-leila-choukroune.html 
 
 
Dr. Amitendu Palit 
https://www.isas.nus.edu.sg/research-team/  
 
TOC  
 
1. Leïla Choukroune and Amitendu Palit, Introduction  
2. Lisa Mardikian and Clair Gammage, “Brexit as Differentiated Integration: The 
Diverging Imaginaries of Future Trade Relationships”. 
3. Amitendu Palit, “Brexit and UK-India Free Trade Agreement: Context, Prospects and 
Challenges”. 
4. James J. Nedumpara and Sandeep Thomas Chandy, “Brexit and the UK’s 
Commitments at the WTO: The Challenges in Effecting a Legal Divorce from the 
European Union”. 
5. AFM Maniruzzaman, Ijaz Ali Chishti, “International Arbitration and Public Policy 
Issues in the Indian Subcontinent: A Look through the English Common Law and 
International Lenses”. 
6. Sai Ramani Garimella, “Interrogating Third Party Funding in Investment Arbitration – 
The Need for Regulation in the UK and India”. 
7. Leïla Choukroune, “Beyond Trade: Power Democracy”. 
 
  
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Introduction  
 
 
On Tuesday 24th September 2019, in an unprecedented decision with major legal repercussions 
for British and comparative constitutional law, the UK Supreme Court ruled that the 
prorogation of the parliament, by Prime Minister Boris Johnson ahead of the Brexit, was 
unlawful1. Reading the judgement live, the Supreme Court President, Lady Hale, said: "the 
decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect 
of frustrating or preventing the ability of Parliament to carry out its constitutional functions 
without reasonable justification.” This extraordinary exercise of judicial review might well 
provide the most dramatic example yet of independent judges’ powers to oppose the 
arbitrariness of the State while, as the ruling explains, the Prime Minister’s decision’s "effect 
on the fundamentals of democracy was extreme."  
 
It is indeed democracy, with its defenders and opponents, which plays the central part in the 
Brexit debate. It is also democracy, which is at stake when the UK envisages to redesign the 
entire architecture of its trade regime and engages in long term negotiations with its main 
strategic partners and indeed India.  
 
Brexit is a significant development not just for the UK, but for much of the rest of the world. 
The significance arises from the new perspectives with which UK and the rest of the world 
would view each other, almost five decades after UK integrated with Europe. Economic 
integration was among the major drivers behind UK’s association with Europe. Following 
Brexit, irrespective of the form it eventually assumes, economic relations between UK and 
Europe would need to be re-formalized. Substantive part of the re-formalization would involve 
recasting trade relations. The UK would need to develop its own trade policy for engaging with 
Europe and the rest of the world. Modern trade policies are as much about trade in goods, as 
they are about cross-border movements of capital, technology, people, knowledge and data 
flows. Bilateral or regional trade agreements entail far deeper alignment between domestic 
regulations that influence these issues than what was comprehensible before. UK needs to 
 
1 The decision is available at:  
https://www.supremecourt.uk/cases/uksc-2019-0192.html and https://www.supremecourt.uk/cases/uksc-2019-
0193.html.  The decision was taken after a three-day hearing at the Supreme Court, which dealt with two appeals, 
one businesswoman, Gina Miller, appealing against the English High Court's decision that the prorogation was 
"purely political" and not a matter for the courts; the second from the UK government appealing against the ruling 
by Scotland's Court according to which the prorogation of Parliament was "unlawful". 
It is the second time in the three years history of Brexit that the UK Supreme Court exercises its power of judicial 
review. In 2016 indeed, Mrs Gina Miller and others already challenged the Primer Minister’s power to activate 
the Article 50 of the Treaty on European Union (“Any Member State may decide to withdraw from the Union in 
accordance with its own constitutional requirements”) without the authority of an Act of Parliament. That 
challenge succeeded with the decision R (Miller) v Secretary of State for Exiting the European Union [2017] 
UKSC 5, available at: https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf.  The Parliament 
responded by passing the European Union (Notification of Withdrawal) Act 2017, which received royal assent on 
16th March 2017 and authorised the Prime Minister to give the notification. Mrs May did so on 29th March 2017. 
 
 
  
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examine these issues from both national and global regulatory perspectives post-Brexit, as do 
countries, which envisage new institutionalised trade relations with UK through trade 
agreements. 
In a parliamentary report published in June 2019, the UK revisits its existing trade relation with 
India to conclude on the need to reawaken the relationship2 . Missed opportunities have 
characterised this special relationship embedded in the complex history of decolonisation. The 
report acknowledges that: “The UK is falling behind in the global race to engage with a rising 
India. Despite strong ties across investment, education and culture—and a shared commitment 
to democracy and to the rules-based international order—the relationship is not fulfilling its 
potential. India’s place in the world is changing fast, and UK strategy has not yet adjusted to 
this new reality. As the UK prepares to leave the EU, it is time to reset this relationship. We 
cannot afford to be complacent or rely on historical connections to deliver a modern 
partnership.” 
Both the UK and India are prominent global middle powers looking to elevate their respective 
strategic influences in global affairs and the world order. Apart from more than three centuries 
of colonial history, both countries are also common in their democratic principles, reliance on 
rule of law, robust legal systems and multi-cultural, multi-ethnic societies. As economies 
though, notwithstanding roughly similar sizes, they vary significantly in structures and nature 
of socio-economic development, as high-income OECD advanced economies do vis-à-vis large 
populous developing emerging market economies. Disruptive developments like trade 
hostilities between the US and China, threats to the multilateral rules-based trade order, 
upsurge in Asia’s strategic significance, and Brexit, present new opportunities for engagement 
between both countries. Enthusiastic calls for repositioning the engagement are mutual with 
trade relations expected to be at the forefront of such repositioning. 
Against this backdrop, and as a follow up to an international conference organised by the 
Democratic Citizenship Theme of the University of Portsmouth (UoP) in partnership with the 
National University of Singapore (NUS), in June 20183,  this Special issue on UK-India post-
Brexit: Trade and Power Democracy, addresses the challenges and opportunities of a renewed 
relationship between the two countries. While international economic dynamics, and trade, are 
at the centre of our discussions, our contributors also tackle important political questions in 
relation to the role of law and regulation, the settlement of dispute, the rule of law and indeed 
democracy.  
Lisa Mardikian and Clair Gammage provide the reader with an insightful and dynamic 
perspective on the Brexit process and the possibility of differentiated integrations within a 
regional project. They argue that the “Brexit does not constitute a process of regional 
disintegration but rather represents a reconstruction of the United Kingdom (UK)–European 
Union (EU) relationship within the existing normative orders of the EU through which an 
 
2  See House of Commons Foreign Affairs Committee, “Building Bridges: Reawakening UK-India Ties”,  
Eighteenth Report of Session 2017–19, 11 June 2019, available at:  
https://publications.parliament.uk/pa/cm201719/cmselect/cmfaff/2633/263302.htm  
 
3 Prof. Leïla Choukroune, Director of the University of Portsmouth (UoP) Democratic Citizenship Thematic 
Initiative and Dr Amitendu Palit, Senior Research Fellow and Research Lead (Trade and Economic Policy) at the 
Institute of South Asian Studies of the National University of Singapore (NUS) indeed co-organised this 
international scientific event, please see: https://uopnews.port.ac.uk/2018/06/11/2-day-joint-conference-india-uk-
economic-regulatory-perspectives/  
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intense level of heterogeneity is recognised alongside diverging ‘scripts’ in preference 
formation.” In examining issues likely to dominate trade talks between India and the UK in 
the event of post-Brexit trade treaty negotiation, including tariffs and movements of people, 
Amitendu Palit then strategically highlights the contrasts in approaches and stresses the 
different possibilities for positive outcomes. James J. Nedumpara and Sandeep Thomas 
Chandy accurately remind us that the Brexit is not only a UK-EU exercise, but also very much 
triggered technical discussions in Geneva on the changes within the World Trade Organization 
(WTO) as,  for the first time since the signing of the General Agreement on Tariffs and Trade 
(GATT)/WTO, a Member’s exit of a customs union is setting in motion a series of novel and 
unprecedented legal issues. As a consequence of these major changes, a series of legal dispute 
might well arise in trade as well as in international investment law. These disputes shall also 
be settled in accordance with the State’s right – and responsibility- to regulate according to its 
sovereign choices. Hence AFM Maniruzzaman and Ijaz Ali Chishti address the concept of 
public policy, as it is conceived and applied in English common law as well as in international 
arbitration law and practice, in the Indian subcontinent in the context of international 
arbitration. Sai Ramani Garimella sheds lights on the now popular yet highlight contested 
practice of third party funding (TPF) in Investor State Dispute Settlement (ISDS) and suggests, 
on the basis of  a thorough UK-India comparison, areas for law reform to prevent the adverse 
effects of TPF on developing states and on the investment law regime itself. Lastly, Leïla 
Choukroune examines the UK-India trade relationship “beyond trade”, that is on the basis of a 
Human Rights-Based Approach (HRBA) taking into consideration issues often described as 
“non-trade” concerns and yet at the centre of business relations. From Corporate Social 
Responsibility (CSR) to trade and gender, the environment and Human Rights, this 
contribution explores recent treaty practices to create a modern framework for trade, that is one 
putting the human being at its centre.  
As alluded to above, the Brexit produces consequences for all UK trade partners and the world. 
It poses pressing questions in relation to the State’s functioning and its ability to engage in but 
also withdraw from regional and international trade deals with major implications for its 
population and indeed democracy. We hope that this Special Issue of the Manchester Journal 
of International Economic Law will contribute to the debate on the role of the State and its 
interactions with the economic forces of globalisation to the benefit of the people as well as 
the more conceptual discussions on a 21st century truly international law.  
   
 
 
 
 
 
 
 
 
 
 
 
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Part 1. Special symposium – UK-India post-Brexit: trade and power democracy:Introduction

https://researchportal.port.ac.uk/ws/files/16571178/Special_Issue_MJIEL_UK_India_Power_Trade_Introduction_and_TOC_Final_26_Sept_19_1_.pdf

Part 1. Special symposium – UK-India post-Brexit: trade and power democracy:Introduction

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