 Good afternoon. My name is Christopher Bider. I was the last UK judge at the Court of Justice between 2012 and 2020, and I'm delighted that I've been asked to host the webinar today. This is the second in the series put together by the Centre for European Legal Studies at Cambridge and Moncton Chambers, and today's topic is interpretation, enforcement and dispute resolution. And looking at the stellar list of speakers that we have for you this afternoon and the topics. I would simply say this by way of introduction, but in the old days, which by the old days I mean when the United Kingdom was a member of the European Union. It was a relatively simple topic in the sense that one had interpretation and enforcement in the UK courts by individuals or by the Commission direct actions in the Court of Justice. There is an issue of interpretation or validity of a EU measure. There's a reference to the ECJ, which then pronounced on it and then the domestic court applied it. However, the position is to say the least a little more complicated now in the future and to take us through what the future may look like. I'm going to start by introducing Professor Takis Tridamass, who is Professor of EU Law at King's College London. I've known Takis for many, many years. He's been frequently here at the court, very well known in academic circles and I can think of no one better than to kick us off with the title enforcement and dispute resolution under the withdrawal agreement. Over to you Takis. Thank you very much. It's a great pleasure. It's an honour to have the opportunity to participate. What I am going to do is give a bird's eye view of the enforcement mechanisms that are available under the withdrawal agreement. As Judge Weider explained, this was an easy topic, but no longer. So essentially the dispute resolution mechanism under the withdrawal agreement is like the withdrawal agreement itself. Somewhat distinct. It is a sly generous. And I think this is because it reflects an inherent tension between international law on the one hand and elements of European Union law. On the other hand, what I would call the residue of integration, which is necessarily present in an agreement that seeks to end a very intense legal relationship. So the dispute resolution mechanism has, I would say, the following main features. First, it is not unitary. It is characterized by the existence of multiple mechanisms and multiple fora. And these are both judicial and non-judicial. So there are two non-judicial fora to bear in mind. One is the Joint Committee, which is provided for by article 164 of the withdrawal agreement. This is a committee which is made up of representatives of the United Kingdom and the European Union, and which provides the forum for consultation between the two parties. It has a particular role in the event of a dispute because there is a best efforts clause in article 169 of the withdrawal agreement. If the two parties have a dispute, they must use their best endeavors within the Joint Committee to resolve it before going to arbitration. The Joint Committee is not the only non-judicial body which is relevant. There is also an independent monitoring authority in the United Kingdom, which is tasked with ensuring that the United Kingdom complies with a part two of the withdrawal agreement, which provides for citizens' rights. And this is governed by article 159 of the agreement, and it has powers to conduct independent investigations. It also has powers to bring actions before UK courts. So let me then go to the judicial fora, to the ways of resolving any disputes between the parties judicially. These are essentially three. It's domestic courts, it is the European Court of Justice, and it is also an arbitration panel. If one were to take them chronologically, then I would say the following, but I'm going to be very brief and then focus on a couple of issues bearing in mind a time limit. Now, during the transition periods, the institutions of the European Union continue to exercise powers and jurisdiction in relation to the United Kingdom. And this is, for example, why the Commission has initiated proceedings against the United Kingdom in relation to the internal market bill under article 258 of the treaty, which is the normal enforcement procedure, where the Commission considers that a member state has failed to comply with its obligations under the treaty, then it can take action before the European Court of Justice. This action has both an administrative and a judicial stage, but it is essentially the classic enforcement action of the treaties. Now, this is during the transition period. Now, going after the transition period, articles 86 and 87 of the agreement provide essentially for the continuing jurisdiction of the Court of Justice in relation to pending cases, cases that have been initiated, have commenced before the end of the transition period, and article 87 also allows the Commission to bring actions after the end of the transition period, if they relate to conduct of the UK, which the Commission considers is incompatible with EU law, but before the transition period. So these continue to be, as it were, a kind of transitional provisions. So what about the continued jurisdiction of the Court of Justice. In other words, jurisdiction in relation to disputes that arise after the end of the transition period. And the such disputes may go to the arbitration panel, to which I will come in a minute. But they may also go to the European Court of Justice. In particular, there are four areas where the withdrawal treaty recognizes jurisdiction to the ECJ. These are in relation to disputes pertaining to citizens rights governed by a part of the agreement. And this jurisdiction is conferred by article 158. Secondly, jurisdiction in relation to the financial settlement provisions of the withdrawal agreement. This is governed by article 160 of the withdrawal treaty. And thirdly, jurisdiction in relation to the protocol on Northern Ireland, and finally jurisdiction in relation to the protocol on the sovereign basis of the United Kingdom in Cyprus. Now, I don't have time to go through all through them what I would say is this the strongest of these four kinds of jurisdiction. The first one in my mind is the second one, I jurisdiction over financial settlement provisions, and I say it is the strongest because there, a preliminary reference procedure continues to apply in full force. English courts, British courts may make a reference, and also the commission may bring enforcement proceedings. And to citizens rights. On the other hand, the European Court of Justice has a continued jurisdiction for eight years after the end of the transition period so until 2028. In courts of the United Kingdom may make reference to the ECJ pertaining the interpretation of our two on citizens rights. It doesn't have an obligation to make reference there is a reference procedure in other words is not as long as the procedure provided by 277. Incidentally, during the transition period in UK courts have made references to the European Court of Justice. Last time I counted I made them seven seven references during the transition period, but I may well be. So they, I now go to the dispute settlement process, the arbitration panel. This is provided for in articles 167 to 181 of the withdrawal treaty. Again, I don't have time to go through it in detail, but I would say the following first. The arbitration panel is independent. The procedure is transparent. The dispute resolution mechanism I would say is fairly strong, and it is fairly strong in the following respects. There is a matrix of provisions, which induce the possibility of stalemate in the appointment of arbitration problems that arise current that have a reason recently and continue to exist in the context of the World Trade Organization. A contracting parties delaying the process of appointing judges are less likely to arise because there are safety mechanisms, which make much easier and the constitution of an arbitral tribunal. Secondly, it is a strong procedure because ultimately it provides for the for retaliation the payment of a lump sum or a penalty payment in the event that one of the parties does not comply with a decision of the arbitration tribunal. There are safeguards there, but ultimately a retaliation, a retaliation action can be taken. This needs to be proportionate retaliation does not include a, at least to my mind, the denunciation of the whole agreement. There are limits in other words, as to what retaliation may provide. The procedure is said to be exclusive. In other words, the parties, the EU and the UK have to use it, but exclusivity operates without prejudice to the other provisions of the agreement that may lead to the ECJ power. I will highlight one more point of this a resolution mechanism which is article 174 provides that disputes before the arbitration panel that raise questions of union law are not to be resolved by the panel, but they have to be referred to the European Court of Justice. So this is a distinct arrangement. It is a novel arrangement. The panel has to make a reference references are compulsory to the ECJ where there is an issue of interpretation of the EU law. The language of article 174 is somewhat looser than the language of article 267 of the treaty. It doesn't say, for example, that reference may only be made when it is necessary to resolve the dispute, but I think that can be implied. The arbitration panel cannot have an obligation to make such a reference, unless without the reference it would not be possible to resolve the case. Still, there are I think interpretation of difficulties in that. Now, when is it to when is the arbitration tribunal to make reference where there is a question concerning the interpretation of a provision of EU law or among other cases where a concept of European Union law is involved and that is a much broader area. I don't have time to go through this now, but maybe you can come back to the discussion. The final method of a settlement is through domestic courts. The agreement has a or at least in my view, the agreement has has direct effect. I'm going to leave it here because I'm aware of time in conclusion, a distinct strong multifaceted system of enforcement which falls short of EU standards, but it is it is very strong by reference to international law. Thank you very much. Thank you very much, Takis for that magisterial overview and I immediately would have a question for you if I was a member of the audience as to what really is EU law is the withdrawal because you said it's it's more international law and question I suppose is to what extent is it a hybrid but leave that to one side for me and I now have great pleasure in asking Dr. Lauren Bartels who's at the University of Cambridge a reader of international law, the faculty of law, and a fellow of Trinity Hall to to some extent a gaze into a crystal ball because he's going to tell us about enforcement and dispute resolution in the future relationship. Yes. Thank you very much. So what I'm going to talk about is yes quite right a little bit hypothetical because we don't know whether there will be an FDA. And so we also don't know obviously what dispute settlement will look in this FDA. And we do know that the topic of dispute settlement in any EU UK FDA is a topic for negotiation. And so we have many uncertainties there so what I can do is say a little bit about dispute settlement in FTAs, and in particular EU FTAs. And so I'll go back to the question very briefly, just by saying that even if we have an FDA with dispute settlement, the WTO is still there. And it's there because most FTAs actually don't have exclusive jurisdiction they have forum selection clause so you get to choose either under the FDA, or whether to go to the WTO. And again we don't know what the EU UK FDA will look like but I would not be surprised at all if we had a clause like that of course once you choose one forum you've got to stick with it, and that makes sense because a lot of the obligations are the same just like a lot of obligations in the EU treaty of the EU was will forgive me, were plagiarized translated into French and then for our purposes retranslated back into English from the original get the EU Treaty of Rome being 10 years after the gap. Right, in many cases, there are of course lots of obligations in FTAs we don't find in the WTO but the core ones are there like non-discrimination, essentially non-discrimination, and sometimes the FTAs even refer to WTO law, particularly in the area of technical standards, and so on. WTO is important, it's also important because if you do something in your FTA that violates WTO law the other side can basically ignore the FTA and go to the WTO and this has happened many times. And from the WTO point of view they don't see FTAs as anything special. They just see them as, you know, arrangements between WTO members in to say which, you know, good for them if it works and if it doesn't work well the WTO is always there, as dare I say at a backstop. So we can't forget about that. Now, what about the FTA system itself? Well, in fact, Tuck has set out a lot of what is common for dispute settlement in FTAs. The most important points as opposed to EU law for instance are these. It is state to state only. Individuals don't have the ability to bring proceedings, it is international law in that sense. There is no direct effect. The EU used to give direct effect to its FTAs but it stopped that practice quite a long time ago now. It was 20 years ago and so there is no direct effect in modern EU FTAs either. So it is very traditional state to state dispute settlement. What else can we say? Well, remedies. So remedies are quite different. There is a split actually in the practice between the US and Canadian FTAs on the one hand and everyone else's FTAs on the other. So US and Canada actually have a system of fines. They call them monetary assessments. If they're not paid, then you get to retaliate, which means suspend your obligations under the agreement. The EU FTAs don't do it with fines. So if we have a standard skinny Canada style, which means Canada EU style and on this point more EU FTA, we can expect that there won't be any reference to fines and it will just be retaliation. So what is retaliation? Well, it's actually a little bit like Tuckess was explaining in the withdrawal agreement arbitration rules. Basically it doesn't include any concept of damage or damages rather for pre-existing injury. What happens is you have your tribunal, the complaining party wins the case. The respondent losing party then has some time to implement, which means comply, can offer compensation, which is a settlement just like in any case. That's always possible. If that doesn't work, then the complaining party gets the right to suspend obligations, which must correspond to its damage. So as a respondent party, there is actually an incentive not to comply immediately because you get all this extra time, all the time throughout the case, until you lose and even when you lose, you get a period of implementation time to actually comply, which is a bit of a weakness in the system. What else can I say? Maybe a word on applicable laws. So as Tuckess said, this is a bit of an issue, how much role would the ECJ have in interpreting any EU law referred to in an EU UK? If the EU likes to give the ECJ this role, it is analogous to a reference to a preliminary ruling, the Tuckess's reference to article 267 is I think perfectly apt. I should say there is some variation in how this is done in EU FTA practice. So you see for instance in some of the agreements, and in fact in the withdrawal agreement refers to concepts of EU law, which could be a lot, right? You know, principles here and there. In the Ukraine Association agreement, which I think is a good model in many respects, the reference is much stricter. It's to a provision of EU law incorporated into the agreement. And that of course, you know, takes away principles and so on. So it's much stricter. Again, we have no idea what it's going to look like, but these are the parameters that I think we can expect to see. I think that's probably the guts of it. Maybe one final point to mention is it's not just about dispute settlement. FTAs and the WTO also have a variety of exceptions clauses, non-economic exceptions clauses, in addition to economic exceptions clauses. So the non-economic ones every EU lawyer will be familiar with. It's essentially article 36, which is taken from article 20 of GATT, which is public policy. And then you also have security exceptions. So these are unilateral, subject to dispute settlement of course. But what you don't anymore find in EU law, at least not since the old article 115 disappeared at the time of the single market, is safeguard clauses. And safeguard clauses are very common in FTAs and very common in particular in EU FTAs. And there's one in the withdrawal agreement in the Northern Ireland protocol, article 16, which has been a cause of some commentary recently. And essentially this says that if the application of the obligations in the FTA lead to an economic disturbance, but in EU FTA practice also social disturbance, which is something much more flexible, then you are entitled to take appropriate measures which have to be proportionate and so on. This is a sort of unilateral snapback mechanism we know from news reports that the internal market bill has, let's say, inspired the EU member states at the moment to insist on this sort of mechanism in addition to normal dispute settlement in any EU UK FTA. Let's see how that turns out. But the concept of safeguard measures is certainly nothing new. So I think I'll just stop there. Thank you. Thank you very much, Lauren for that. Well, we're now going to turn our attention to what's happening or what will happen in the United Kingdom. And our next speaker, Dr Emily Hancox, who is the Spencer Ferris fellow law at Selwyn College, Cambridge, is going to talk to us about interpreting and departing from retained EU law and case law. Emily. Thank you. And I just wanted to say thanks very much to Jack and Kenneth for inviting me to speak as part of this excellent series of webinars. And so today I'm going to talk about interpreting and departing from retained case law. And I'm going to discuss three main points. I'll start by introducing the concept of retained case law. Then I'll talk about how retained case law can be used by domestic courts going forwards. And then in when and what circumstances it can be departed from. So firstly, starting with the idea of retained case law. So the EU withdrawal act 2018 aims to ensure legal continuity. And as the explanatory notes put it a functioning statute book when the implementation period ends. And it does so by creating a new category of domestic law called retained EU law, which essentially takes a snapshot of the law and force on the 31st of December this year, and ensures this carries over. There are several exceptions to this which I won't outline here and which were discussed by Alison Young in her presentation last week. In essence retained EU law covers existing domestic law. So that's acts of parliament as well as secondary legislation that implemented or otherwise gave effect to EU law in the UK. It also covers direct EU legislation so mostly regulations as well as some other directly effective rights and obligations. The problem with retained EU law for maintaining legal continuity is that retained EU law only copies and pastes the text of EU law, and not its interpretation. And if we want to ensure legal certainty and continuity, then it's necessary to carry over the interpretation of EU law. And this is particularly important on account of. The vagueness of some provisions of EU law on account of the more teleological modes of reasoning of the European Court of Justice, and also in light of the Marley Singh duty of consistent interpretation which means that national law often needs to be read down or reinterpreted quite strongly in order to comply with EU rules. So here that section six of the EU withdrawal act steps in. So according to section six of the EU withdrawal act 2018, the meaning validity and effective retained EU law is to be interpreted in accordance with any retained case law with the general principles of EU law, and having regard among other things to the limits of EU competence. The case law does not only refer to the case law of the European Court of Justice, and it's here that section six of the EU withdrawal act introduces a further subdivision. So retained case law refers to retain domestic case law, which is those principles laid down by in any decisions of a quarter of a quarter tribunal in the United Kingdom, which relate to retained EU law. It also then retains EU case law, which is any principles laid down by in any decisions of the European Court of Justice, and also in relation to retained EU law. And importantly, the concept of retained case law only extends to those decisions of both domestic courts and the European Court of Justice, up and until implementation day. So it means that when we're talking about continuity, we're not talking about keeping up with the case law of the European Court of Justice, but of maintaining continuity in terms of the law in force. So if I move now to discuss how retained case law can be used going forward. So it's quite a complex series of rules on the use of retained case law and there's also a number of certainties in relation to interpretation. So when interpreting retained EU law, a domestic court or tribunal will have to ask several questions. So the first question I'll have to ask is whether or not that retained EU law has been modified in any way. So section eight of the EU withdrawal act includes the power to amend retained EU law, so as to resolve any deficiencies with that law. So if retained EU law has been modified, then a domestic court needs to ask whether it's still consistent with the intention of that modification to interpret the provision in accordance with retained case law. Now this might be the case where the modification is fairly minor such as submitting a reference to an EU body or to the other member states. In the absence of any modification or whether or when interpretation is still deemed consistent with that modification, a domestic court will then need to consider whether there is any domestic case law on the meaning of that particular provision of retained EU law. And this will be particularly important when it comes to the interpretation of EU derived domestic legislation. And it's important to note here that when combined with the supremacy of retained EU law as preserved by section five of the withdrawal act that the Mali Singh duty of consistent interpretation was still seem to apply. But if the matter is not come before domestic courts before particularly particularly if it relates to direct EU legislation, or to directly effective provisions of EU law. It is necessary to look at whether or not there is in fact a court of justice decision relating to this particular aspect of retained EU law. And if there is then I'll come on to discussing when whether or not it's appropriate to depart from this later. But if there is we can assume that this would be followed for the time being. But if there is not, and this is perhaps where matters get a bit more complicated. It seems that by retaining the case law of the European Court of Justice and this is also set out in the explanatory notes to the withdrawal act that the intention is also to maintain the interpretive approach of the European Court of Justice in relation to retained EU law. And so, and the explanatory notes specifically state that they intend to maintain this more propulsive mode of interpretation. So when it comes to the interpretation of direct EU legislation. The ECJ says that its approach is kind of described as approach as being one which is literal systematic and teleological. And this means for domestic courts, they might have to look to the recitals of the relevant EU legislation or interpret that legislation in light of the aims of the treaties, or in light as well of the general principles of EU law such as originality, equality, legal certainty, as well as potential, as well as human rights which are also recognized as the general principles. Perhaps more importantly when it comes to the interpretation of retained rights or obligations, there is a question of the extent to which this concept of retained case law means that the more integrationist or communitarian aspects of Court of Justice, of the Court of Justice case law should also continue and that national courts should also try to emulate this. So in particular when interpreting particularly treaty provisions the European Court of Justice looks to concern such as the uniformity and effectiveness of EU law, as well as the commitment to ever closer union, and also certain goals such as the construction of the internal market as well as other kind of mainstreaming provisions which we find the start of the treaties. And it's unclear perhaps the extent to which all of these different interpretative, or what have sometimes described as metatelialogical interpretative approaches of the European Court of Justice will be retained as part of retained case law. And this is in part because I suppose it's particularly alien to the reasoning style of British judges to kind of emulate the mode of reasoning of the European Court of Justice. But it's also that perhaps in some instances it might feel inappropriate to be interpreting retained EU law in light of these more communitarian aspects of the treaties. And this is something that I'll discuss briefly when I come on to discussing when it's appropriate to depart from retained case law, but I first just wanted to mention something about what this means in relation to the EU Charter for fundamental rights, which is explicitly not part of retained EU law. The Charter will be kind of indirectly maintained because where there is an interpretation of retained EU law in light of the Charter of both domestic legislation which implements EU law but also of direct EU legislation. And this interpretation will be maintained, but the Charter may also be maintained indirectly via the general principles of EU law. Although the European Court of Justice is not recognized that all Charter rights are also general principles, although we might infer this from the codificatory nature of the Charter. So moving on to when it's permissible for domestic courts to depart from retained case law. So differing rules apply here depending upon whether we're dealing with retained domestic case law or retained EU case law. So retained domestic case law has the same precedential status that normally has so it won't be so a decision on the interpretation of EU law or retained EU law by a lower court won't be binding upon a higher domestic court, whereas retained EU case law essentially has the same status of Supreme Court decisions. They can only be departed from the Supreme Court or the High Court of Justice of Justice in Scotland, according to the tests which they have for departing from their own case law. And it's interesting to think about departure. I'm going to finish very soon in relation to new decisions of the court of justice, because while all courts can take these into account, only the Supreme Court or the High Court of Judiciary can actually depart from retained case law at the court of justice so should the court of justice actually reverse its earlier case law, only actually the Supreme Court or the High Court of Judiciary could take this into account. There has been a consultation on the possibility of departure, and the results of that or the government hasn't yet released its response and so I won't say that much about that because I'm very conscious of time so I'll hand back now but thank you. Thank you very much, Emily for that well I'm sure that will will already has generated a number of questions and comments and I now move to our last speaker. Jack Williams who's a bastard act monk chambers and if I may interject a personal name here he was my first study air. When I became a judge here in Luxembourg in in 2012. It's no surprise to me that his career has taken off in the United Kingdom is one of the council in the first Miller case and he is going to talk to us about domestic enforcement and dispute resolution. So you remember from the last week that I said there were four different components of EU relations law. In this talk, I'm going to look at the top two components disputes arising in relation to the domestic level about retained EU law and the separation law stemming from the withdrawal agreement and the northern island protocol. Under retained EU law, how is this enforced and litigated in domestic law, what sorts of disputes to be likely to see here. The first area of contestability that I can see arising is whether something is indeed retained EU law under the EU withdrawal act 2018 in the first place, I whether somebody can actually rely on it in UK courts. As Young explained last week, how old you law is retained in the UK law, but the interpretation of the 2018 act itself is likely to be contested. For example, what about unimplemented or improperly implemented directives can they be directly relied upon. Well that depends on the meaning of the other kind wording in the 2018 act itself in section four to be. The directives of the conceptual sort that would have been recognized by the ECJU to meet the direct effect test, or does it instead mean only those directors of a kind that have actually already been recognized by the court in a pre existing case. I've blogged about this quite extensively and you can see my views on that link, but the explanatory notes are contradictory on that point. Another example that Emily has raised is about the EU charter of fundamental rights. That's not retained in domestic law as the act says that expressly. The acting section five also states that that does not affect the retention of any fundamental rights or principles which exist irrespective of the charter. The next step is that we're going to end up with quite a few cases contesting the interaction of retained EU case law as discussed by Emily and the charter was the retained EU case decided upon the basis of the charter alone, or was it instead really implementing a general principle or relying on a treaty article or legislative provision interpreted in a particular way, which must then still be followed. Secondly, once you've established that an EU retained law right is in play and can be relied upon in the domestic courts, we still have to remember that there are differences from what we're used to. First of all, the act states that the law is supreme, but only generally vis-à-vis pre implementation period completion day IPC day legislation. So that means later domestic legislation can override the retained EU law. Secondly, there's no right or action in domestic law after IP completion date based on a failure to comply with general principles. So we know that that case law is not a cause of action in itself. But again, I think there are likely to be some creative disputes which are likely to arise it. You may not be able to use the general principle itself to supply or quash any enactment or rule, but you can use it to interpret the rule. So you can't have it as your ground of challenge per se in your judicial review. But how far I wonder, can the interpretation be used to the same outcome and effect for claimant clients? I think there are ways and means that people will try and argue about. Thirdly, there is genuinely also now no right in domestic law on or after the end of the transition period to damages in accordance with the rule in Frankovich, i.e. state liability and compensation for breaches of EU law. Now, that exclusion to the right of Frankovich damages in schedule one of the act applies both prospectively and retrospectively. So that means it includes Frankovich rights that claimants have as of now. That's the effect of paragraph 39 in schedule eight. So some seven schedules later, which really does demonstrate the point that you really have to have your wits about you when reading this particular act. And I say generally there's no right of Frankovich damages as there are some exceptions. The main one for litigators on this webinar to be aware of is that claimants have two years from the end of the transition period to bring any Frankovich claims that relate to anything which occurred before the end of the transition period. Now that sounds generous and is explained in the explanatory notes is generous. But what that actually does is reduce the current six year limitation period for breach of statutory duty for bringing the claim for two years. Now the third level of disputes in relation to potential law is the big one challenging the domestic regulations which are meant retained EU law under the Henry the eighth clause or the Charles the first powers in section eight of the 2018 act which allows ministers to change and alter the meaning of retained EU law. Now section eight is drafted very widely, meaning that regulations on their face can have can do and make any sorts of changes whatsoever, but it still has its limits. The power can of course only be used for two years, and there are express actions prohibited that can't be done by this domestic secondary legislation, such as introducing taxes. But the limits are broader than that and are likely to give rise to a substantial amount of domestic litigation. As this is secondary legislation, it could be challenged on all the normal grounds of judicial review. Moreover, these powers are usually interpreted very narrowly by the domestic courts. See the Supreme Court in 2016 in the public law project case. Now that means there are likely to be a number of virus issues raised by litigants. Firstly, is the amendment actually correcting a deficiency that's listed in sketched section eight. The list is long, but I think it's important to remember that the white paper introducing the bill stated and I quote here that it's not a vehicle for policy changes. Taking back control does not require us to change everything overnight, and we will not do so. Now I suspect there will be a number of cases alleging at least the substantive and policy changes rather than mere deficiencies are being made by ministers on exit day. So it's not just a case of changing references to the Commission and the UK to the CMA, for example. I suspect a number of substantive changes are being made and are susceptible to challenge. And secondly, even if there is prima facie a deficiency, it has to arise out of Brexit. Just because Brexit gives the opportunity for some changes, that doesn't necessarily mean that the deficiency itself arises from Brexit. Now I think this language has potentially been overlooked in some of the commentary on potential challenges to these regulations, but it'll be interesting to see how the courts define and interpret the use of the language arising from either narrowly or broadly. So that's some of the domestic litigation vis-a-vis retained EU law. Now what about the second level of the EU relations law, the provisions of the withdrawal agreement and the Northern Ireland protocol. Article four of the withdrawal agreement as Takis has alluded to states that its provisions and the provisions of union law that it makes applicable shall produce effects in and of in respect of the United Kingdom and produce the same legal effects as they would have produced within the union and its member states. It states accordingly, persons shall in particular be able to rely directly on the provisions contained or referred to in this agreement that meet the usual conditions for direct effect under union law. And it also states the UK shall ensure compliance with that, including giving courts the required powers to supply inconsistent or incompatible domestic provisions. So to borrow the metaphor from the Miller Supreme Court case that then has to be a number of conduit pipes in domestic law in domestic legislation that brings in the withdrawal agreement law. It's not enough that there's just that that stated in article four of the withdrawal agreement itself because of the due list status of UK law. Now there are in fact a number of different conduit pipes in domestic legislation and I've listed them there for the separate areas of substantive rules and how they flow into domestic law. The main one though is section seven a of the 2018 act, which was inserted by the EU withdrawal agreement act 2020. It reads that all such rights powers liabilities obligations and restrictions from time to time arising or created by the withdrawal agreement are without further enactment to be given legal effect or used in the UK. Now you'll remember that that's very similar and very closely related to the wording in section 21 of the European Communities Act 1972. This is in its in essence its replacement. And section seven C of the 2018 act makes clear that domestic law implementing the withdrawal agreement, which is known as relevant separation agreement law must be interpreted consistently with the withdrawal agreement provisions. So that's how the withdrawal agreements will end up in domestic law. And lastly, as Takis has alluded to it's a little bit of a case of hello darkness my old friend, because preliminary references are still a feature and at least three areas that I've outlined on the slide. So there is still a role for the Court of Justice in Luxembourg post transition. I think it's where the very briefly just to make note of two things. Firstly, that the provisions of the withdrawal agreement so part to the citizens rights are give easy to the ECJ jurisdiction for eight years, whereas the Northern Ireland protocol ones seem to give the ECJ jurisdiction forever more. And secondly, in relation to the last Court of Appeals to the Supreme Court vis-à-vis the withdrawal agreement provisions, it's only a May obligation to give a reference, whereas in relation to the Northern Ireland protocol, because it brings in article 267 of the TFEU. It's a must refer to the ECJ obligation. So there are interesting quirks at the domestic level, but how this will all work going forward. And with that I hand back to Christopher, who I believe will introduce some of the Q&A session. Well, thank you very much, Jack, and thank you to all our speakers. And we now move to seek to answer comment on some of the questions that you, the audience have put. Jack, do you want to kick off with some of the questions that have been submitted? Yes, so there is one I believe addressed to Takis. Is there any theory by which a private party can take a direct action under the withdrawal agreement against the breaching party or in due course the FDA if it includes a strong enforcement mechanism, or is this essentially a diplomatic matter? Takis, you're muted at present. I'm so sorry. Thank you. Yes, thank you, Jack. Okay, it depends what is meant by direct action. I would say the following. I think the withdrawal agreement is intended to produce direct effect. This appears from article four paragraph one of the agreement. It doesn't mean that the whole of the agreement has direct effect. It means that if a provision of the agreement meets the conditions of direct effect. In other words, it imposes a clear precise and unconditional obligation, then a party may invoke that provision before the domestic courts of an EU member state. A party may also invoke that provision before a court of the United Kingdom. And this results from two provisions. So article four paragraph two of the agreement, which specifically imposes this obligation, and as a matter of domestic law, as you outlined so well from article seven, a of the withdrawal act 2018. So article seven a, in particular article seven a one and seven a three, essentially replicate this idea of direct effect which was present under the European Communities Act as you explained so well. So if by direct action in the question is meant whether an individual can go directly before the European Court of Justice, then that would depend on the admissibility requirements provided there in being met. So that avenue is more difficult, but essentially the agreement envisages, at least to my mind as I said, and envisages the possibility of direct enforcement by individuals, either before the courts of the United Kingdom or the courts of an EU member state. There's one for Loranda, I believe, or a couple for Loranda on WTO laws. The first is from Kenneth Armstrong. Any useful lessons that we can learn from actual disputes under EU FTAs? Are there any standouts disputes to tell us how likely a state will use the FTA dispute mechanisms rather than the WTO mechanisms? Yeah, sure. Well, there are hundreds of FTAs and a good number of those have dispute settlement provisions in them of the sort that I was describing with enforcement and so on. There are in the last few years, 20 years even for disputes under FTAs. There are many disputes between FTA partners that have gone to the WTO. Why? Well, the simple answer is that the disputes that have gone to FTA dispute settlement involve, except in one case, obligations that don't exist in the WTO, so labour standards obligations, environmental standards obligations that you don't have in the WTOs. There's no choice. There is one at the moment which is EU against Ukraine evolving export restrictions on timber which could have gone to the WTO. And I'm not quite sure why it didn't. Maybe there's a political dimension. What other lessons can we draw? Well, the best explanation for why, there are a couple of explanations for why countries prefer the WTO. One is it's got a good secretariat. So you know what you're getting in terms of support. That makes a big difference. The quality control is good. The other is that you have the transparency and the publicity and sunlight being the best disinfectant dimension to WTO disputes, much more public than in bilateral. And there are a few other explanations as well, but essentially the WTO is still a king. Now, with the possibility of appealing into the void with no appellate bodies, so WTO disputes settlement effectively becomes voluntary. It is likely that we'll end up with more FTA disputes, I think between countries that don't want to play the WTO game. And I think there's a follow up one for you as well. And are there material differences between dispute resolution provisions in the GATT 1947 and the GATT 1994, which is not reflected in the EU treaties? Well, I'll just take that as WTO disputes. I think because GATT 1947 disputes haven't been relevant. Well, since the WTO really since it became compulsory, except for the shenanigans that we are seeing at the moment. Well, the short answer is no, it's basically the same. Okay. And then Emily, I think there are there are two, Dr De U, but obviously Christopher and Takis can jump in. You mentioned the Mali Singh principle, Emily, should we regard that principle as itself part of retained EU law, or simply part of retained case law, and does the distinction matter? Which I'll just address at the same time, which is slightly different, but how has the government given any indication as the result of the consultation on the regulations for its ability of lower courts to depart from retained case law? And if not, what do you think the result may be? I'll start with the last question, which is that I am not privy to any insider information at all. So I don't know. I also would not want to hazard a guess as to what the outcome would be. Although I would say that overwhelmingly the responses to the consultation that I've read have suggested that the danger to kind of legal certainty and the potential for kind of forum shopping that most of the responses have suggested that the power should in fact not be used and the possibility of amending retained or departing from retained case law should be reserved to the Supreme Court and to the high court of the judiciary. In relation to the Mali Singh principle. So I mentioned it mostly in the sense that where an interpretation of retained domestic law has been interpreted in light of directives, kind of in light of the Mali Singh principle, that this will remain. And I suppose the Mali Singh obligation of consistent interpretation will remain in light of Section 5-2 of the EU withdrawal act and the explanatory notes to the withdrawal act in fact say this. I don't think that means that it's retained case law or retained EU law. Perhaps it forms part of the kind of more general interpretative requirements. I think depending upon how we understand the definition of retained case law, the Mali Singh principle might be maintained as retained case law. But this has also made a bit more problematic by the fact that directives themselves, unless they are kind of of a sort which might be retained, won't necessarily form part of retained EU law which kind of complicates the interpretative approach which is required there. So I'm not sure I really answered the question. I think it's a really difficult one because it demonstrates that the different conduit pipes that you have between Sections 2 and Section 4 of the 2018 Act, a number of principles could actually in theory come down a number of them. I retained EU case law, retained EU law and so I think they're going to be difficult to speak particularly in relation to Mali Singh. Now there's an interesting question which I will include Christopher and I as well from Marcus Garen. Given the complicated legal question, would you recommend that law students still study EU law for years to come? I wonder if anyone had any views on that. If I kick off on that. In my view, the answer is yes quite where it's going of course, it is a different matter but one has seen that EU law simply looking at the way that the withdrawal agreement is structured will continue to play a great part because the courts will be bound to apply EU law in certain circumstances and the way that I see it although it's early days yet is that more generally EU law will still be a source of law for English law in ways that for example the Strasbourg court is a source of law. I mean there's no obligation on an English court to follow Strasbourg and then one is also to bear in mind but unlike the position say in 1972 which probably none of us can remember. UK law is very similar was identical to the moment to EU law and if we take just two examples competition and public procurement. I very much doubt. I mean that UK will have an in fact it can't if it's complying with WTO to have no public procurement and I would be very surprised if it's competition law departed substantially from EU law. And as somebody who sat on the large number of public procurement cases here in Luxembourg, I can see that one constantly has new cases coming out and I would have thought those are going to be valuable guidance to to to English lawyers and I would also suggest English law students so I think the answer is yes, EU law should continue to be taught at universities. And following up from that Christopher I know that you wrote a very interesting blog post on the relations law blog in relation to that exact question of the importance of the law going forwards, but also because Tachis and I have both mentioned preliminary references. I note and remember that you said something about the court moving towards a more abstract response to preliminary references. I don't know whether you're able to comment on the ECJ's new approach going forward. Yes, that is, I mean this is this is a point which is which is totally unrelated to Brexit is that the preliminary reference ruling system has been if I can put it this way a victim of its own success, because the court in Luxembourg has been working with preliminary references I should say that in my view the UK always adopted UK judiciary always adopted a very sensible approach because the number of references from the UK was always quite limited. And so in order to stop or rather reduce the incentive for references the ECJ is seeking to move to in some cases to give a more abstract answer because the problem with giving an answer which is then very much centered on the facts the case is that it is extremely tempting for a judge within the EU to then send a follow up question saying well in this case the facts are slightly different. And particularly in in Prince's employment cases, there's been a growing tendency of that happening. And so the move to if you like give a more abstract ruling is designed to in a sense say to national courts for really, we're just giving you the basics, you then you then apply it. There are still a number of questions, but I'm conscious that we've, we've probably hit the time limit but I think we'll try and answer them in future sessions most of them seem to relate to topics that we can, we can cover in future webinars so Christopher. Well it gives me great pleasure to thank all the speakers for putting on a wonderfully rich diet if I may put this because we this is a lunch I don't know some of you may be munching something while looking at the screen but even if you've been having that form of substance I think you've got an awful lot of intellectual sustenance at lunchtime today, and I would urge those of you who've been in attendance to look at the next session next, which is going to take place I gather on the 25th of November and I'm sure it'll be as good as this one thank you all very much for attending and also for having posted your very interesting questions.