Mr. David O'Sullivan:

I thank the Senator for those questions. I am well aware of the controversy over this whole issue. I lived through it during the Transatlantic Trade and Investment Partnership, TTIP, negotiations. I had many discussions with both sides of the argument. I understand there are those who find the very idea of a special track for commercial litigation or disputes unacceptable. I am afraid the practice of international investment has shown most people think it is necessary. I think most governments would agree it is useful. It is not a criticism and one should not take it as such. Germany is one of the leading exponents of bilateral investment treaties. It more or less invented the concept. It is very proud of its judicial system. It does not see any contradiction between the strength of its judicial system and the fact it accepts, in certain circumstances, this kind of arbitration is probably the best way to go because it gives that country's companies certain rights in jurisdictions where things may function less well.

I get the argument. I do not have sympathy for it but I do have a certain understanding of it. If one looks at the way the investor-state dispute settlement, ISDS, has worked and one looks at the cases, one will find very few cases where companies have succeeded in extracting compensation other than in situations where it is demonstrable they have not been fairly treated. Governments have probably even accepted that they were not perfectly treated and it is just a question of how much the compensation would be. I accept Ireland does not have any bilateral investment treaties so we have no tradition of this. I honestly believe, however, a well crafted system of investor-state dispute for international investment can be a useful complement to even the most effective national judicial systems. That is the question the Oireachtas is called upon to look at. Many member states attach importance to this. Many of our trading partners attach importance to this. If we want to be, like the EU, in the business of concluding trade and investment agreements, we must have an answer to the concerns of our trading partners and other member states.

I want to be very clear. I do not think I said "nothing was impossible" but maybe I did. It would be extremely difficult to reopen the CETA package now. At the end of the day, if a sovereign parliament or member state is forced to say it cannot conclude this package because of XYZ - in Ireland's case it may be because of the investment court system and somewhere else it may be because of trade concessions or whatever - of course that creates a problem and it has to be addressed. The point I want to make is that when one has a package deal on the table, it is very difficult to limit the renegotiation to just one thing and to say, "I don't want to touch all the rest; I just have one thing I need touched." I am sorry, but we have 26 other member states and Canada involved. Basically, there are 27 other people who will say, "Well, that's interesting that you want to do that, but if we're going to talk about that, I've got four or five other things I want to talk about." That is the way it happens. I think it would be extremely difficult at this stage to reopen this negotiation because of this and because considerable efforts have gone into crafting the investment chapter in a way that moves in the direction of the critics of the older system.