Red Line Crossed? The Withdrawal Agreement's Arbitration Clause

Ending the jurisdiction of the CJEU over the UK is one of the highest-profile 'red lines' drawn by Theresa May and emphasised since the Brexit vote in June 2016, under the mantra of "taking back control of our laws". Since the notion of a two-year transition period was introduced into negotiations between the UK and the EU, it became clear to most that this red line would be crossed for this period at the very least. It may be that the draft Withdrawal Agreement's arbitration clause is the escape mechanism by which the UK can avoid the jurisdiction of the CJEU and gain a political win, but it might represent a red line crossed for the CJEU itself.

Commentators and practitioners in EU law have struggled to see how the jurisdiction of the CJEU can be brought to an end after a transition period in circumstances where there is any suggestion of questions of EU law being determined outside the jurisdiction of the CJEU. This was brought home in the context of arbitration