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Andrew Tettenborn: We should tell little Malta it suffers delusions of grandeur


Fighting Euro-words a day or so ago from, of all people, Maltese premier Joseph Muscat. For five years after any Brexit the European Court of Justice will, he says, continue to control what happens in the UK and have the final word in interpreting any agreement we reach. To be taken seriously, says the Telegraph: after all, Malta has the rotating presidency of the Council for the next six months.

Or do we need to do anything more than smile and nod at yet another tough-guy stance? For one thing, the Council presidency lasts only six months: Malta steps aside on 30 June this year. Given the possible delays in triggering Brexit, despite Theresa May’s vaunted March diary entry, it seems not unlikely that Mr Muscat will be on his way back to Valletta very shortly after, or even before, the vital piece of paper arrives (if there is one: perhaps bored aficionados of EU law, not to mention Gina Miller, while away their idle hours arguing whether Article 50 can be triggered electronically).

More to the point, why should we believe a word of this? It’s often forgotten that other countries have free trade deals with the EU, two of the most important being Mexico and Canada. Take a look at the agreements (available here and here). Neither mentions the Court of Justice. Both provide for submission of any disputes to an independent body of arbitrators. This is the way of doing things up and down the globe, and it doesn’t take an Einstein to realise why: no party to a trade agreement in their right mind would agree to give the courts of one party the last word when things go wrong. There’s no reason why our negotiators should settle for anything less: and there’s equally no reason to think that the EU would insist on it to the extent of walking out.

(Image: Berit Watkin)

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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