John Habergham, Myton Law, Hull U.K.
It is a truism that business doesn’t like uncertainty. And it a further truism that Brexit brings plenty of uncertainty. The fact is that the process will require the reassessment of the way trade and the movement of goods have developed over a period of 40 years.
A workable agreement may be hammered out between the UK and the EU, which will be of benefit to both parties. But both EU politics and UK politics may get in the way.
Firstly, it must be the case that the EU is not going to give Britain an easy ride. If that were to be the case, other states within the EU might question why they too should not follow the same path as the UK. This is bound to have an impact on whatever agreement is reached.
Politics may also come into play in the other direction, as I hope will become clear.
Purely from the transport law perspective, Brexit should not bring great change, because none of the international conventions for the carriage of goods are creatures of the EU project. Both the international convention for carriage by sea (Hague Rules 1924) and the carriage convention for rail freight (CIM) (1893) certainly pre-date the European project. The international convention for the carriage of goods by road (CMR) grew up alongside the European project but was never a result of it.
On that basis, there should be no alteration to the laws governing the carriage of goods.
Question of law and jurisdiction
Where there may be some need for readjustment is with regard to EU conventions which, whilst not purely about transport, may have an impact on freight transport issues.
The Rome Convention determining the proper law to apply to contracts and the Brussels Convention ( Recast ) dealing with the allocation of jurisdiction between states are children of the EU and when the UK leaves, so we leave both conventions.
There would be no reason why the UK and the EU should not re-enter into a treaty in effect re-introducing these EU conventions because they work and they are of benefit.
But this is where UK politics may get in the way, because under these conventions currently the final arbiter of any dispute with regard to law and jurisdiction is the European Court of Justice – and the extent and width of its jurisdiction may be one of the red lines for the UK.
This is not to say that there might not be some arrangement reached whereby the UK Courts have due regard for the relevant decisions of the Court of Justice of the EU. This may be a workable compromise.
Carriage of goods supports underlying trade, and the future basis for trade is where the major uncertainty arises.
Leaving the Single Market and the Customs Code appear to be red lines for the UK although it is fair to say that one of the most recent publications from the UK Government did strike a more conciliatory tone.
The introductory paragraph of ‘Future Customs Arrangements’ (and indeed the sub-title ‘A Future Partnership Paper’) encapsulated the two issues. On the one hand it spoke in terms of the UK’s potential for forging new trade relationships around the world after exiting the EU. On the other it spoke in candid terms of seeking “a new customs arrangement that facilitates the freest and most frictionless trade possible in goods between the UK and the EU.”
There is a recognition that whilst there is the potential for trade outside the EU, the Customs Code has had a benefit in supporting trade with both the EU and countries outside the EU.
The Paper was also business-like, highlighting the need to establish an independent international trade policy, but repeatedly emphasising the mutual benefits of trade with the EU and spoke in terms of “a new deep and special partnership”, recognising that the guiding light had to be what achieves the greatest economic advantage to the UK, an integral part of which is ensuring that UK/EU trade is as frictionless as possible.
The Paper was strong on rhetoric but short on detail, so as far as we can assess the implications of Brexit for transport law and regulation, that is as much as can be anticipated at the time of writing this.
But I conclude by returning to the politics of it all.
The Paper quite rightly highlighted that the EU/UK trade is not just important to the UK but also to the EU. There must be many European businesses which see this and share the desire to attain the goal of frictionless trade. But, whether the institutions of the EU share this desire is moot. I suspect the stance will be “No one should benefit from leaving.”