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Mind the gap: Brexit and the UK’s position vis-à-vis 759 bilateral EU treaties

  • United Kingdom
  • Brexit
  • Competition, EU and Trade

27-09-2018

In the past few weeks, the UK Government has been publishing a number of technical notices setting out the repercussions of the UK leaving the EU without a withdrawal agreement. Helpful as these documents might be in clarifying some of the consequences of a “no deal” Brexit, what continues to remain unclear, is how the UK plans to deal with the fact that on 30 March 2019, it would no longer be covered by, reportedly, 759 treaties which the EU has in place with 168 countries.

The scope of these arrangements is wide-ranging and includes the free trade agreement with South Korea, the air transport agreements with the United States and Canada, as well as co-operation in such diverse areas as nuclear energy and fisheries.

So far, commentary on this issue seems to have been confined to general expressions of confidence that, come Brexit, appropriate alternative arrangements will be in place or that it might be possible to interpret some of the EU agreements as still applying to the UK post-Brexit, that the UK might be able to rely on bilateral international treaties that were in place prior to its accession to the then EEC or that, ultimately, it should be possible for the UK to replicate many bilateral EU arrangements on a one-to-one basis with the same third parties.

Unfortunately, these responses do not address adequately legitimate business concerns. A key issue here is that disruption to existing arrangements governed by these treaties can arise whether or not there is a Withdrawal Agreement. To be clear, even if the UK were to exit the EU with a Withdrawal Agreement and a 21-month transitional period, during which EU law would continue to apply to, and in, the UK, as of 30 March 2019, the UK will not be covered automatically by the EU’s international agreements.

Currently the draft Withdrawal Agreement indicates that the EU will “notify the other parties to these agreements that during the transition period, the United Kingdom is to be treated as a Member State for the purposes of these agreements.” However, there is no obligation on such other parties to do so during a transitional period or indeed, to continue to offer the same terms to the UK on a bilateral basis, following the expiry of that period.

Indeed, the view that it would be simple for the UK to replicate (and subsequently improve) many of the EU’s trade deals and other international agreements on a one-to-one basis, has been criticised for relying too heavily on the expectation that third parties negotiating with a market of 500 million would be willing to offer the same terms to the UK and that they would be willing to do so without seeking to extract better terms, including for example, requiring the UK to relax its regulatory standards or provide greater access to its markets.

In fact, according to some reports, in the context of initial discussions over future bilateral arrangements important allied countries have offered to the UK less beneficial terms than those which such parties have agreed with the EU.

There are those who see such matters as unavoidable teething problems leading to the new post-Brexit state of affairs where the UK, even if not from the same position of strength as the EU, certainly from an independent position, would be able to strike its own trade deals with the world. For others, these are consequential issues with no easy or quick solutions which create legal uncertainty and can affect business operations and by implication investment decisions.

Less than 200 days before Brexit, further clarity on what measures are being taken to prevent or limit the consequences of the UK not being automatically covered by these treaties, is now of the essence.

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