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On invitation by ACES and ACELG, Jed Odermatt recently gave a guest lecture on dispute settlement between the UK and the EU in the case of Brexit. We interviewed him after his lecture to find out how he as an Australian got so deeply involved in the study of EU law, his perspective on Brexit and the role for ongoing dialogue between the UK and the EU.

How did you as an Australian become so deeply involved in the study of EU law? Does your non-EU background give a different perspective on Brexit?

I was first exposed to EU law when I did an exchange at the University of Copenhagen. I was really struck by the fact that EU law was taught as ‘real’ law, in the same way that you would study administrative law, or public law. In Australia, EU law is mainly viewed as a type of international law, so it was interesting to see that EU law was taught as a domestic legal system. I became particularly interested in the interaction between EU law and international law. In cases such as Kadi and Brita, the EU Court of Justice dealt with this complex interaction. I noticed that there were very different responses to these cases from academics with an EU law or an international law background. Often this difference stemmed from a different understanding about the very nature of EU law – as either a domestic or international legal order.

I think that my non-EU background does give me a different perspective on issues such as Brexit, as I can see the issues from both an internal EU perspective, and from that of a non-EU state. For instance, when discussing dispute settlement, I understand how it would be important for the UK to have an independent dispute settlement body, rather than having the withdrawal agreement governed by the EU Court of Justice. I think that many academics from outside the EU may be reluctant to study EU law and Brexit, since it requires quite some background knowledge about EU law and EU institutions. Yet, I think that it is important for international law scholars to understand the EU and how it works, not just to understand issues such as Brexit, but also to follow many of the other developments where the EU is active.

 

You recently published the paper “How to Resolve Disputes Arising from Brexit”, which served as the basis for your guest lecture. Discussant Gareth Davies teasingly called you very brave in putting down anything in writing about Brexit, at a time when there is so much uncertainty about it. What moved you to publish this paper? How did you address the uncertainty of researching such a topic?

I agree that there are challenges when studying a ‘moving target’ such as Brexit, where developments can change from day to day. However, I think that this also gives academics the chance to influence debates and be part of the conversation. For instance, when the EU Court of Justice decided in Wightman about whether the UK can unilaterally revoke its notice under Article 50 TEU, the Advocate General discussed the arguments put forward by academics who had been debating this topic. In the UK, Parliament has also heard the opinion from academic experts on a number of areas or EU law and international law. 

 

How does Brexit fit into your broader research interests?

One of my research interests is understanding how the EU fits within the broader international legal order. The EU is viewed internally as a ‘new legal order’ and this narrative has tremendous sway in the internal discussions, for instance, in EU constitutional law. But this narrative is not always accepted by the EU’s international partners, who often view the EU as more of an international organization, or even a group of aligned countries (a bloc). Brexit is an experiment in international law, where we see these competing visions play out. For instance, in the Miller case before the UK Supreme Court, the judges discussed the nature of EU law, and whether the EU Treaties could be treated as regular international treaties. In Wightman, the EU Court of Justice did not really engage with international law arguments, but interpreted Article 50 in light of the purposes of the EU Treaties. More broadly, I am interested in how international and regional courts deal with political questions. The topic of dispute settlement is particularly interesting in the context of Brexit, as it involves a mixture of legal and political considerations.

 

You emphasised the role of dialogue foreseen in the withdrawal agreement. From your point of view, is there a chance for ongoing, constructive dialogue between the UK and the EU after Brexit?

The dialogue foreseen in the withdrawal agreement relates specifically to the courts of the UK and the EU. The issue of ‘dialogue’ between courts has grown in prominence in recent years. There is dialogue, for instance, between the EU Court of Justice and the courts of the EU Member States. Dialogue between the courts in the EU and the UK after Brexit will also be particularly important. However, there is little detail in the agreement about what dialogue entails, and what the purpose of such dialogue is. I am interested in how these courts talk to one another, and what impact this has in practice. There is also the need for political dialogue between the EU and the UK after Brexit, and these discussions can potentially prevent disputes from coming before dispute settlement bodies in the first place.

 

Read the lecture announcement here.