Brexit Negotiations: A Decidedly Mixed Picture

The latest round of Brexit negotiations has just concluded, with notably contrasting assessments from the UK and the EU.

David Davis, leading the UK delegation, observed that progress had been made in a number of important areas including healthcare rights for EU and UK citizens, mutual recognition of qualifications and reciprocal rights for citizens to set up and manage a business in the UK or the EU.

Michel Barnier, the EU's chief negotiator, accepted that there had been progress in some areas and that the discussions on Northern Ireland had been productive. However, he stated that "we are a long way from confirming that sufficient progress has been made to be able to recommend to the Council of Ministers that it should initiate discussions on the future relationship between the UK and the EU." In particular, he emphasised that there remain major disagreements on the key issue of the amount the UK should pay to the EU to settle its liabilities on departure.

Commenting on the UK's recent position papers, he also noted that "the UK wants to take back control, it wants to adopt its own standards and regulations. But it also wants to have these standards recognised automatically in the EU [....]. This is simply impossible. You cannot be outside the Single Market and shape its legal order."

What do the position papers tell us?

But rhetoric aside, how far apart are the two sides in reality? A comparison of the UK and EU's position papers provides some indication of the extent of disagreement. We have already commented on the UK's position papers on customs arrangements and the future role of the ECJ. This week we look at a number of other subjects which are of key relevance to business - namely the UK's position papers on legal matters, goods and data.

Judicial cooperation in civil and commercial matters

Why it's important: a business suing in the English courts may need to enforce the eventual judgment in another EU member state. At present, EU member state courts are generally obliged to recognise English court judgments - but after Brexit, that may not be the case. Current arrangements with the EU also cover issues such as: how far EU member state courts will uphold exclusive jurisdiction clauses (obliging the parties to sue one another in the English courts, for example); and in relation to matters with a cross-border dimension, which national law should apply and which courts should have jurisdiction (including how far the parties' own...