Mr. David O'Sullivan:

I will not get involved in a legal argument with a distinguished former Attorney General, certainly not on the constitutional issue. I really do not want to express a view; I am not qualified to do so. I will leave that to constitutional lawyers.

On the more general point, if it is true that one should just rely on national courts, why then do all our fellow members states have so many of these agreements? Why have countries such as Germany, France and others, including the United Kingdom, which are very proud of their systems, opted to allow the existence of this parallel system in certain well-circumscribed and limited circumstances? They have not seen any conflict between the older system of arbitration and their national judicial autonomy and sovereignty.

Senator McDowell says this is a WTO harmonisation agenda. On the contrary, many people - certainly the United States and the Chinese, among others - do not like the idea of a multilateral court. They want to keep the arbitration system because it is a more ad hoc, specific and limited system which they feel works quite well for them. It is certainly not a question of making a judgment on the value of a country's legal system, and this is an important point. It is to a certain extent exactly the opposite. It is the fact one chooses to have a model as to how to manage these kinds of disputes when they may arise that is one-size-fits-all because one does not then have to make a judgment on the legal system of the country with which one is negotiating. Imagine if, before we started a negotiation with a partner, we had to decide whether we trusted its judicial system sufficiently to have a parallel system of investor-state dispute settlement. That would be a very tendentious and difficult discussion. This is why even when a country such as Germany concludes bilateral investment treaties with countries with less robust legal systems, it is reciprocal. They give to the investors from that country the same rights they will claim for their investors in the country concerned because they think this is sufficiently constrained and sufficiently limited as not to contaminate or to cause a major conflict with their solid legal systems.

I hear what the Senator says. In Ireland's case, I admit that, not having any bilateral investment treaty or any experience of this, we are of course a good place in which to invest, and nobody has asked to have an investment agreement with us. We do not have an investment agreement with the United States. The fact is, however, most of our fellow member states do have bilateral investment agreements with nearly all the kinds of countries with which we have negotiated or will negotiate. Since investment is now a Union competence under the treaty, we have to address the issue in some way, recognising that the ad hoctribunal or arbitration system was perhaps less balanced and effective. This is why the European Union is pioneering the idea of a multilateral court to put it on a more solid and more transparent footing, including with rights of other interested parties such as civil society and so forth to make their views known. I perfectly accept the validity of the questions and the debate but I believe that if Ireland looks at this in the round as a member of the European Union that wants to engage with these kinds of trade and investment agreements with a multiplicity of partners across the world, we have every interest in rowing in behind a well-crafted and well-thought-out multilateral way of dealing with this rather than relying on the traditional arbitration.

CETA is a very important step in that direction. That is why it is a positive movement in this whole area of investor-state dispute settlement, ISDS, and not something which should be viewed with concern.