Michael McDowell (Independent) | Oireachtas source

I thank Mr. O'Sullivan for being here. It is good to see him again slightly in the flesh or as near as circumstances permit him to be in the flesh with us this evening.

It seems to me that the investment court system, ICS, issue is one on which it is possible to take a number of different stances. I want to explore with Mr. O'Sullivan the following. As I understand it, going back to our Maastricht treaty in 1992, we specifically amended our Constitution to allow us to become part of a binding jurisdiction for a European patent court. At that time, it was thought we had to amend our Constitution to do that. As late as 2012, 2013 or 2014, the then Minister of State, Deputy Sherlock, told Dáil Éireann a referendum would be needed for a unified European patent on the same basis that here was something which was going to become binding on Ireland in these circumstances. Underlying that issue was the whole concept of a sovereign state agreeing to be bound by the decision of a tribunal other than the Court of Justice of the European Union etc. That is one issue. There is a constitutional dimension to this.

From an entirely practical point of view, the terms of the TTIP negotiations, in which Mr. O'Sullivan himself was involved, with the agreement's controversial arbitration provisions, which caused considerable controversy, were justified at the time to a large extent, to use a quotation, "because of its potential global reach in setting an example for future partners and [other] agreements". I see implicit in what Mr. O'Sullivan said earlier in reply to Deputy Howlin the same notion that this is a good example and something we want to have in all agreements. However, as against that, and this is my worry, it seems to me no Irish investor in Canada has in the back of its or his or her corporate mind the notion the Canadian courts will not uphold its or his or her rights as an investor in Canada, and I know of nobody in Ireland who would say, "I do not have faith in the Canadian courts to uphold my rights." Likewise, I have absolutely no reason to believe Canadian companies or corporations lack faith in the Irish courts to uphold their rights, such as they are.

One of the things that is strongest in mind is that we receive a huge amount of foreign direct investment, FDI, from the United States without such an arbitration system existing at present. People have confidence in the jurisdiction of the Irish courts and its integrity. Nobody in America says, "Sorry, I do not want to invest in Ireland because the sovereign government may confiscate my investment or act in a manner which is inimical to my investment and unlawful." Therefore, I think we have, Britain certainly has and most of the European countries have, a huge comparative advantage internationally in that we are countries where it is safe to invest. I do not see why we should cash in our chips, so to speak, to set an example in trade deals with the Third World countries or the developing world or the other blocs - South America, Mercosur or the like - and say, in effect, we have less confidence in our own courts or in the Canadian courts than we ought to have and the right way to deal with this is to superimpose either arbitration or an ICS as a confidence builder for investment. I do not see that any Canadian should have any reasonable worries about coming to Ireland as an investor or that any Irish investor corporation should have any problems with Canada.

What I am really asking, bearing in mind there is a constitutional dimension to this and we are being asked to confer additional rights over those available in our courts and under our Constitution on investors in Ireland, is this: is this in our interest? Is it in our interest, for instance, to be on a level playing pitch with Bulgaria as a place in which to invest? That is just a simple question. Is it in our national interest to say the jurisdiction to determine disputes in Ireland is the same as the jurisdiction to determine disputes with the Bulgarian Government? Are we throwing away a comparative advantage?

Having said all that, and at some length, for which I am sorry, it strikes me the ICS jewel on top of this trade agreement is a bit redundant between the European Union and Canada, that the arguments against its inclusion are very strong, that nobody in Canada has any well-grounded apprehension about investing in this jurisdiction, and that nobody in Ireland has a well-grounded apprehension about investing in Canada. What we are really doing with this agreement, therefore, is being driven by a WTO agenda to try to make this the international norm in order that it will be the way to determine disputes with other regions of the world where there would be an absence of such confidence. Those are the points I wish to put to Mr. O'Sullivan.