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A dispute resolution clause could solve the Brexit impasse
A dispute resolution clause could solve the Brexit impasse. The Attorney-General is in Brussels to seek the amendment of the 'backstop'. The EU says it won't amend the Withdrawal Agreement, so some form of add-on is needed. The 'backstop' is a contingency to come into effect if a deal cannot be agreed, in the 21 month transition period, to prevent the return of a 'hard' border in Ireland and the feared resurgence of violence.
Opponents say they are worried that it could permanently commit the UK to a customs union. To draft detailed provisions as to what will happen in the future if parties cannot reach an agreement is a big 'ask', when positions are so entrenched and circumstances will almost certainly change. One answer is a dispute resolution clause that sets out a process to follow if the 'backstop' is triggered. US Senator George Mitchell's mediation 20 years ago led to the Good Friday Agreement. When something has worked before, try it again.
So, I suggest a mediation clause, with an arbitration clause to apply as a 'long stop'. The mediation would start at the same time as the 'backstop'. The parameters would be no 'hard' border and the mediator(s)/arbitrator(s) having a presumption against a permanent 'backstop'.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.