Arbitrators are selected from a list of 25 individuals, which will be drawn up by the joint committee established by the withdrawal before the end of the transition period (currently scheduled as December 31, 2020). The UNITED Kingdom and the EU would each appoint ten people as arbitrators and five others as presidents. Applicants should present an expression of interest demonstrating the suitability for the position in terms of the skills and experience necessary to effectively assume the role of a member of an arbitration panel under the withdrawal agreement. Expressions of interest are treated in a strictly confidential manner. Is the withdrawal agreement compatible with EU law? At first glance, the reference system appears to be in place in the withdrawal agreement. However, this is not new for the EU. Indeed, the reference mechanism of the withdrawal agreement resembles reference models in some association agreements between the EU and the former Soviet states (cf.B. Article 403 of the EU-Moldova Association Agreement). More generally, there are at least theoretical dispute resolution clauses that contemplate a reference from an arbitral tribunal to a permanent tribunal. Section 5 of Part XI of the 1982 Law of the Sea Convention (`LOSC`) provides for a system for resolving disputes relating to mining in the international seabed area.
Section 188, paragraph 2 of the LOSC indicates that disputes relating to the interpretation or application of contracts relating to activity in the seabed area may be subject to arbitration proceedings under the CNCI rules. The central element of section 188, paragraph 2 of the LOSC is that the arbitration tribunal refers issues relating to the interpretation and application of the LOSC for binding decision to the Seabed Disputes Chamber. Reference mechanisms in dispute settlement clauses in international treaties are a rare feature and are generally not tested where they exist. However, for the EU institutions, the reference mechanism seems to offer a pragmatic solution if a party is not willing to accept the exclusive jurisdiction of the Court of Justice. The Council`s guidelines of 25 February 2020 for the negotiation of a new partnership agreement with the United Kingdom are proof of this pragmatism. Disputes over the new partnership agreement are referred to an arbitration tribunal; but „a dispute should raise a question of interpretation of EU law. . . .
the Court of Arbitration should refer the matter to the Court of Justice as an exclusive arbiter of EU law for a binding decision. It is true that some non-COMMUNITY states absolutely do not want to accept the participation of the ECJ, if only through a reference mechanism. But there are many areas in which direct dialogue between the arbitration tribunals and the Court of Justice could have the advantage of reconciling competing interests, if only in the area of future investment protection in the EU internal market. Given the many references to EU law, it is likely that a dispute in the context of the withdrawal agreement will raise questions about the proper interpretation and application of EU law. For example, if the UK adopts a subsidy programme including business assistance in Northern Ireland, the problem would be that these measures would comply with EU state aid rules, as interpreted by the ECJ. However, the need for a reference may be less likely if the current disagreement over the UK domestic market law were referred to an arbitration tribunal.