From Constitutional Adjudication to Trade Arbitration Enforcing Mobility Rights Post-Brexit

Abstract

This article addresses the termination of the CJEU’s jurisdiction post-Brexit and its replacement with a much more restricted dispute resolution provision, more reminiscent of that found in free trade agreements, focusing in particular on the enforcement of mobility rights. It begins by addressing the root causes for Britain’s antagonism towards the Court. It argues that the Court’s expansive interpretation of the Treaties, masked by a legalist approach to European integration, has allowed the Court largely to avoid scrutiny by most Member States. Nevertheless, the Court’s judicial activism was ultimately rejected by the UK leading to the Court’s curia non grata status post-Brexit. It then analyses the key features of the post-Brexit dispute settlement system proposed by the UK and the EU .We argue that while the Court has been criticized for its judicial activism, EU law did provide significant avenues for an individual’s access to courts. This fundamental feature is missing from the dispute resolution mechanism under the proposed UK-EU free trade agreement (FTA), leaving an important gap in the system of justice in the future UK-EU relationship.We argue that under the new dispute settlement regime mobility rights will be adjudicated as trade disputes. This has serious implications for the protection of rights of individuals wishing to exercise any future mobility rights. Court of Justice, free trade agreement, integration, free movement of person, mobility, dispute resolution