Attorney General Advice On Withdrawal Agreement

2. The principles of European Contracts Act (ECLP) go a little further than English law in the application of bona foi bargaining obligations. Article 1:201 provides that « [e] party shall act in accordance with good faith and fair trade » and Article 1.202 provides that « [e] party owes the other party a duty of cooperation to give full effect to the treaty ». In other words, the parties have reciprocal duties of cooperation and loyalty. Even if « [a] party may negotiate freely and is not responsible for the failure of an agreement, » « a party that has negotiated or interrupted negotiations in good faith and good faith is liable for losses suffered by the other party » (Article 2:301). It summarises the views of the three magistrates – the Attorney General, the Attorney General and the Advocate General for Scotland – who must ensure that ministers act within the law. « While the obligations to act in good faith and, in particular, to make the best efforts when negotiating a new agreement are strong and precise, they cannot require the negotiating parties to set aside their fundamental interests, even if they ask the parties to consider proposed changes to the means that could guarantee them. For the Union, the prevention of a hard border on the island of Ireland and the protection of the 1998 Agreement are fundamental interests in all its dimensions and that the provisions of the Protocol achieve these objectives. This does not exclude other ways to guarantee them and it is possible that, if the EU stubbornly refuses to present an alternative proposal from the UK on its protection, which clearly demonstrates bad faith and a breach of the obligation to apply the best efforts, it could be challenged.

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