The Attorney General suggests that this is all it would take to meet the duty of good faith. However, in light of the above remarks, I suggest that much more needs to be done. The EU would have a duty to cooperate sincerely to achieve the objectives of the protocol, including the explicit objective that the provisions of the Protocol apply only temporarily and that the EU and the UK explicitly do their best to conclude an agreement to replace all or part of the Protocol by 31 December 2020 (see Article 1, paragraph 4, and Article 2 paragraph 1 of the protocol). In his central article on Brexit, Ben Habib expressed his concern that the UK would be forced to extend the transition period by the ECJ against our agreement if it decided that the UK had failed to live up to its commitment to do its best to negotiate a deal with the EU, in accordance with the political declaration. I have distinguished myself on the front line of those who strongly oppose the dangers of the ECJ`s large-scale jurisprudence in the withdrawal agreement, which unfortunately was not cancelled during Boris Johnson`s last-minute negotiations with the EU. The protocol stipulates that its provisions will be maintained “unless they are partially replaced by a subsequent agreement.” However, under the provisions of the protocol, the parties are required to seek in good faith, in their soul and conscience, the negotiation of an alternative agreement, taking into account the fact that the protocol must be temporary. In early December 2018, the UK government was forced to publish legal advice from its Attorney General on the legal effect of the protocol on the withdrawal agreement of Ireland and Northern Ireland (the “protocol”). The central legal issue, as identified by the Attorney General, is that, although the protocol is clearly designed as temporary and although the parties are obliged to negotiate in good faith an alternative agreement, the provisions of the protocol will continue to exist, “unless they are partially and partially replaced by a subsequent agreement.” 2. The principles of European Contract Law (PECL) go in good faith over English law to enforce bargaining obligations. Art.
1:201 provides that “the party must act in good faith and fairness” and Article 1:202 provides that “[t]he party is an obligation to participate in the other, to give full effect to the treaty.” In other words, the parties have common duties of cooperation and loyalty. Although “[a] party can be freely negotiated and is not responsible for the failure of an agreement,” “a party that has negotiated or interrupted negotiations against good faith and fair trade is responsible for the losses suffered by the other party” (Article 2:301). I suggest (hesitantly) that this compulsion to reach an agreement may have had a number of problematic results, although you will have to grant me a few points of pure speculation. It is possible that Johnson`s government, under external and domestic pressure, has concluded the withdrawal agreement (including the Northern Ireland Protocol) and signed the political declaration on future relations to complete the irreversible part of the Brexit process, withdrawal. Once the withdrawal phase is complete, the process would move to the international aircraft, where Johnson and his government might have argued that the enforcement mechanisms would be weaker and that the UK would benefit from more negotiating levers. Arrange in a hurry, ignore the obligations in leisure, in other words. Furthermore, it may have been felt that all aspects of the political declaration that did not correspond well to the proponents of Brexit – such as the recognition of the need for a level playing field in an economic partnership – are not legally binding and can therefore be put overboard or significantly reshaped in negotiations on future relations after the withdrawal date.