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states as they apply to non-EU judgments”. 102 It seems courts”. This means that our current form of resolving
more likely that a harmonised approach to multi- investor-state disputes is a privilege which may soon
jurisdictional disputes will be negotiated, but this can’t be cease to exist, because one of the fundamental reasons
said with any certainty at this stage. for leaving the EU is to avoid being under its jurisdiction.
Lawyers at Simmonds & Simmonds suggest that “in We will therefore need to find a suitable alternative
advance of Brexit, commercial parties may be wary of mechanism which allows parties to resolve their disputes
choosing the English courts to have jurisdiction for their once we have departed the EU’s jurisdiction.
disputes”, and for parties who “may still wish for their A white paper produced by May and her cabinet in the
disputes to be subject to English law, that choice may well wake of the Brexit decision provides recognition of the
lose its attraction if they perceive a risk of any dispute fact that a dispute resolution mechanism must be sought
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being litigated in a foreign court, which may well be to fill the void. It is unclear at this stage what shape our
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unfamiliar with English law” . However, they later state dispute resolution process with Europe may look like after
that the appeal of arbitration is yet again reinforced by Brexit, however the UK government assert that “any
Britain’s membership to the New York Convention, and arrangements must be ones that respect UK sovereignty,
that the combination of arbitration with “opting-in to protect the role of our courts and maximise legal
appeals to the English court on points of law pursuant to certainty, including for businesses, consumers, workers
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section 69 Arbitration Act 1996”, may offer a solution and other citizens“. The white paper goes on to detail
to post-Brexit issues with jurisdiction. Opting-in to a some of the arrangements that other states have in place
review on a point of law means that if a tribunal is to resolve multi-jurisdictional disputes. CETA (for
incorrect in their application of the law, the court can step example) have implemented an alternative dispute
in to correct it. resolution (ADR) mechanism which is tailored and subject
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to the nature of the dispute or parties to it. In the event
Investor State Dispute Settlements (ISDS) of a dispute, CETA member state parties are subject to a
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consultation and mediation process. Neither of these
Investor-state dispute settlement (ISDS) provides forms of ADR are binding on parties to the dispute, but
investors with a form of recourse for suing countries for they do offer a more cost efficient and ‘informal’ way of
alleged discriminatory practices. The UK’s membership to settling the matter outside of arbitration. If this process
the EU has provided us with certain rights, such as access fails, then the parties can proceed to arbitration for a
to the single market. The bulk of EU law is “aimed at binding decision.
ensuring the efficacy of the single market, and some of There are several bilateral investment treaties which
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these EU laws have direct effect in the UK”. This body provide arbitration as a mechanism through which an
of law allows individuals or companies within the UK to action may be bought, such as NAFTA, and the proposed
bring an action against a member state (or companies and Trans-Pacific Partnership (TPP) agreements. Given the
individuals within a member state) for blocking trade wide range of similarities between court hearings and
access or infringing certain rights to which it should be arbitration hearings, together with the uptake of
able to rely upon. Decisions on such matters can be arbitration as a form of multi-jurisdictional dispute
handled by domestic courts when there is sufficient EU resolution in other states, it seems highly likely that this
law to interpret effectively on the matter, and when that will be the option pursued by the UK. If this is so, the UK’s
becomes difficult or impossible (owing to a lack of similar arbitration sector may flourish more as a result of Brexit
case matter or clarity), the domestic courts can refer “EU than it did prior to the referendum.
law interpretation to the Court of Justice of the European
Union (CJEU). When the CJEU makes a decision, that
decision is binding on all Member States; in the event of
future legal disputes relating to the same subject,
companies can rely on CJEU decisions in their domestic

102 Paul Thwaite, “Enforcing Judgments After Brexit”, paragraph 12. See 107 https://www.gov.uk/government/uploads/system/uploads/attachment_dat
http://www.shlegal.com/news-insights/enforcing-judgments-after-brexit a/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_
103 http://www.elexica.com/en/legal-topics/dispute-resolution- EU_Web.pdf page 15 paragraph 1 (2.5 reference point)
commercial/16-arbitration-in-2017-the-response-to-brexit-uncertainty 108 https://www.gov.uk/government/uploads/system/uploads/attachment_dat
104 Ibid (elexica) a/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_
105 http://www.osborneclarke.com/insights/navigating-investor-state- EU_Web.pdf page 70, annex A.3
disputes-in-a-post-brexit-world/ paragraph 4 109 Ibid A.3
106 http://www.osborneclarke.com/insights/navigating-investor-state-
disputes-in-a-post-brexit-world/ paragraph 5