Michael Howe, Édouard Bruc, and Milena Maltese Zuffo have published an article entitled “Fishing in Uncharted Waters: The First Ever Arbitral Award Under the EU-UK TCA” in the IBA Dispute Resolution International Journal. The article examines the first arbitral award rendered under the EU-UK Trade and Cooperation Agreement (‘TCA’), prompted by the United Kingdom’s prohibition of sandeel fishing in English and Scottish waters. It analyses the tensions between regulatory autonomy and treaty-based obligations, with particular attention to the role of scientific evidence, the principle of proportionality and allegations of discrimination. The tribunal’s reasoning, which upholds the Scottish ban while identifying procedural deficiencies in the English measure, sheds light on the dynamic relationship between environmental protection and international trade law. The article further considers the award’s procedural innovations and reflects on its broader implications for the future operation of dispute resolution mechanisms under the TCA.
Extract: “Although the headline is that the EU succeeded in establishing that the UK had breached its obligations under the TCA, the overall outcome could be seen as a regulatory win for the UK. As to the meaning of best available scientific advice, the Tribunal favoured a material error standard, noting, among other things, that ecosystem models are ‘always’, to a certain extent, ontologically flawed. Rather than accepting the mere identification of errors as sufficient, the Tribunal emphasised that such errors must have a material and proven impact on the outcome – something the EU repeatedly failed to establish. More generally, the Tribunal interpreted the TCA as primarily imposing on the UK due process obligations, rather than more substantively intrusive constraints. Mindful of its adjudicatory mandate, the three-arbitrator bench endeavoured to steer clear of interfering with politically driven decisions, which are rarely an exact science. In the present case, such a spirit of restraint was perhaps fitting when dealing with hardly commensurable things, such as environmental protection and biodiversity, and when competing economic objectives need to be balanced.”
This article first appeared in the October 2025 issue of Dispute Resolution International (Vol 19, No 2), and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.