On 17 March 2017 Professor Robert G. Volterra spoke at the ‘Negotiating Brexit’ conference at St. Hugh’s College, University of Oxford.
The conference, organised by Professors John Armour and Horst Eidenmüller, brought together leading academics, practitioners and policymakers who are involved in “Negotiating Brexit”. The focus of the event was the interests at stake for the United Kingdom (“UK”) in the ensuing Brexit negotiations with the European Union (“EU”). Robert was invited to provide his input on the analytical framework of Brexit, from the perspective of international trade and the law of the World Trade Organisation.
Robert made a presentation on the legal implications of Brexit on the UK’s current trade relationships with non-EU Member States under the EU’s mixed Free Trade Agreements (“FTAs”). He explored the controversial legal question whether the mixed EU’s negotiated FTAs with third countries which have been signed and ratified by the Member States will continue to apply to the UK post-Brexit, or whether they will be automatically terminated once the UK withdraws from the EU.
Robert approached this issue from the perspective of public international law, arguing that Brexit will probably not affect the UK’s capacity as a formal “party” to mixed EU FTAs. Whilst the answer to this question will always depend on the specific wording of each treaty, any agreement that might be reached between the UK and the EU on the basis of Article 50 of the Treaty on the European Union is unlikely to produce any effect vis-à-vis third contracting States, which cannot be bound by an agreement between other States without their consent. However, different wordings in different FTAs might have different implications for the scope of applicability of mixed EU FTAs ratione loci and ratione personae.
The legal fate of mixed EU FTAs will have serious consequences for the conduct of Brexit negotiations. According to the House of Commons, the EU currently has 63 FTAs with third countries, which account for as much as 20% of the UK’s export markets for goods. If the UK remains a “party” to these treaties and they continue to “apply” to it, it will be able to rely on its provisions to maintain its trade relations with third countries. What is more, mixed EU FTAs could introduce a new parameter in the negotiating table and provide for a dispute settlement forum in case of controversy.
A more in-depth analysis was published by the Oxford Business Law Blog and will be published as a separate book chapter under the aegis of Hart Publishing in July 2017.