Lord Frost will use a speech next week to reiterate that the UK wants the European Court of Justice (ECJ) removed from oversight of the NI Protocol.
The EU will bring forward proposals on Wednesday for reforming the protocol.
They will focus on easing practical problems, rather than changing oversight arrangements.
But the Brexit minister will say: ‘Without new arrangements in this area the protocol will never have the support it needs to survive”.
The protocol is a special Brexit deal for Northern Ireland, agreed by the UK and EU in 2019.
It avoids a hard border on the island of Ireland by keeping Northern Ireland in the EU’s single market for goods.
That creates a new trade border between Northern Ireland and the rest of the UK.
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This has caused practical difficulties for some businesses while unionists say it undermines Northern Ireland’s constitutional position as part of the UK.
The UK government also wants to reverse its previous agreement on the oversight role of the ECJ, which is the EU’s highest court.
Supreme interpreter
In a paper published in July, the government said it had only agreed to the ECJ’s role because of the “very specific circumstances” of the protocol negotiation.
It now wants a new governance arrangement in which disputes should be “managed collectively and ultimately through international arbitration.”
The ECJ is the supreme interpreter of the rules of the single market.
As the protocol works by keeping Northern Ireland in the single market for goods, the EU says removing the ECJ would simply unravel the protocol.
Speaking last week, European Commission Vice President Maros Sefcovic said: “I find it hard to see how Northern Ireland would stay or would keep the access to the single market without oversight of the European Court of Justice.Media caption,Boris Johnson said he believes the Northern Ireland Protocol could “in principle work” if it was “fixed”.
Lord Frost is expected to address that issue when he makes a speech to diplomats in Portugal on Tuesday.
He will say: “The commission have been too quick to dismiss governance as a side issue. The reality is the opposite.
“The role of the ECJ in Northern Ireland and the consequent inability of the UK government to implement the very sensitive arrangements in the protocol in a reasonable way has created a deep imbalance in the way the protocol operates.”
When the EU publishes its proposals next week that is expected to lead to a new round of negotiations.
Both sides have suggested there will be short, intense talks process beginning in late October or early November.
