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Could and should May take Trump’s advice to sue the EU?

Tony Hughes, Huthwaite’s CEO, examines Donald Trump's recent negotiation advice to Theresa May in the context of Huthwaite's researched behaviours and highlights the important lessons businesses can learn.

Could May really look to sue the EU? The recent suggestion by Trump was almost immediately batted off as a ridiculous suggestion and dismissed by Government officials, including the Prime Minister herself. Yet could there be method in the perceived madness and if so, to what benefit?

Considering May’s current, weakened position – following a host of high profile resignations and a leave team that is considered a little too ‘remain’ – on closer inspection, Trump’s suggestion may not be so outlandish.

Method behind the madness?

Trump is a notorious deal maker and negotiator. Known for his provocative language, power play tactics, and willingness to use the ‘madman’ approach - first made famous by Nixon in a bid to end the Vietnamese War - in his negotiations. In short, Trump is well versed with using brute, often sensational tactics to get what he wants. And, as the historical North Korea meeting demonstrated, his approach often works - in the short term at least.

Many theorists brand these particular behaviours as classic ‘game theory’, whereby Trump adopts the ‘madman’ approach to instil a fear that either intentionally or unintentionally, he might do something that could be disastrous.

It is this theory that Trump is suggesting could work for May. Yet, what would the benefits be for the UK Prime Minister on taking such an approach? And indeed, on what basis would she sue them?

Power play

Firstly, May would appease the leavers that have resigned as a result of the ‘soft’ Brexit approach they feel she  is taking. Getting these dissenting voices back on board would help to unify the UK Government, establish a mandate, a sense of perceived strength and promote a image of togetherness amongst the Brexit campaigners.

A position of power is absolutely essential for successful negotiations. By setting a clear, no-nonsense stance, May would – in theory – portray a surer footing and a new position of strength. Rather than looking to negotiate with the 27-country bloc, and with it a mirage of up to 20,493 individual agreements, May would cut the cord, and position herself as the fully supported figurehead, firmly in charge.

The legalities

But what would May actually sue the EU for? This is where the plan, fundamentally, gets into sticky ground. If the EU breaches EU law, then May could absolutely sue and be heard by the European Court of Justice.

However, as one would expect, May would have to be explicitly clear as to what she was suing the EU for. A potential area could lie in subsidies – possibly farming or agricultural - that have previously been promised and subsequently denied. But until agreements have been made, legally there aren’t any breeches to any agreements.

However, examining Trump’s business dealings prior to his presidency, often the mere threat of legal actions – even if the specifics are ill-defined – can be enough to secure the desired leverage.

Could suing be a viable phase two method?

However, the concept of suing shouldn’t be dismissed entirely and does hold some merit. For a successful negotiation, each party must come to a clear agreement, based on trust, goodwill and a positive climate. In other words, any contract should not be infringed upon. So, if May does reach agreements as part of her Brexit negotiations and these are not honoured, then suing would be a viable and even sensible approach.

And this has been done before. Let’s not forget Prime Minister David Cameron suing the European Central Bank for proclaiming it would only license institutions within the Eurozone as clearing houses for transactions in Euros – hence leaving out the UK.

So, should May sue?

In short, not yet. The UK and EU haven’t come to an agreement regarding Brexit, so as of yet there simply haven’t been any breaches. At present May and the UK negotiation team are under ‘procedural duties’, meaning they intend to act in good faith. So, if May was to bring about a case to sue the EU under these circumstances, she would seriously damage negotiations.

Yes, it would position the UK as being ready to fight to the bitter end, which some may perceive as a position of strength. But, in reality, this doesn’t provide a positive climate in which to build a productive environment for negotiating - which at some point, must happen.

With the Customs Bill and the Trade Bill in the pipeline later this week, announcing an appetite to sue at this stage of the negotiations would be nonsensical. Hence May’s recent call for members to ‘keep their eyes on the prize’, of which she references leaving the European Union in a way that’s in the UK’s interest. May is dismissing Trump’s advice at this stage and instead focusing her efforts on ensuring that her party votes against a Trade Bill that keeps the UK in the customs union.

Will the UK sue the EU in the future? That remains to be seen and is entirely dependent on the EU’s willingness to stay true to its word come the introduction of the agreed Brexit negotiations.

Related download

Do you know the behaviours skilled negotiators use to get the outcome they want? Do you know the behaviours they avoid? Download this whitepaper to learn key insights your team can implement immediately.

Further reading

Are counter proposals a viable negotiation technique?
By Dr Janet Curran | March 4, 2015

Are your people negotiating or concession making?
By Huthwaite International | October 21, 2015

Developing effective negotiation skills
By Huthwaite International | May 2, 2016