Dr. Laurens Ankersmit:

I thank Deputy Brady for his question and Dr. Suttle for his answers. I fully agree with the very elaborate answer Dr. Suttle gave on opinion 1/17. It is very important to emphasise that, in the end, the Court of Justice will not interpret this investment chapter when it comes to the resolution of disputes between foreign investors and governments. What it has said on this issue, which is quite limited, will certainly not be binding for these tribunals. An example is the interpretation that the list of situations that form the fair and equitable treatments standard is exhaustive. Maybe the ICS tribunals will come to a different interpretation of that. This is something for which the ICS tribunals will be responsible in the end.

I would add that I find the test of the Court of Justice quite light. It is a legal test, not a political judgment. Of course, in the end Ireland has to decide whether it would like to delegate the responsibility of taking that decision, weighing the public interest against the interest of the foreign investors and protecting their assets, to these ICS tribunals and to decide whether it agrees with the text by which that is done. It is a political judgment. What the Court of Justice does is lay out the minimum constitutional requirements from the perspective of the EU treaties. Article 8.9 of CETA, which is the article on the right to regulate, is really just a continuation of what is already there.

It states the parties reaffirm their right to regulate. It is just a continuation of the existing balance. The use of the term "greater certainty" is all couched towards basically a continuation of already existing investment law practice. It is important for parliamentarians to ask if they agree with this language. Do they think this language will protect the public interest sufficiently? The language could be much stronger to carve out certain claims, such as, for instance, by carving out investment in fossil fuels. There are many more examples by which one can opt out on giving this additional layer of protection for foreign investors.

I do not know if I can submit more material but I wrote recently a specific article on this particular point of Opinion 1/17. I will forward it to the committee for it to examine.

On SMEs, it is a double-edged sword. One can say that it is important that SMEs have access to this tribunal. They should also have access to a tribunal to which they can bring claims against regulatory measures from governments. On the one hand, it might be good for SMEs. However, is it a good idea to expand the coverage of the investment court system, ICS, to even more investors that could make use of it?

In this particular context, few SMEs will make use of the ICS in the Comprehensive Economic and Trade Agreement, CETA. How many small businesses in Ireland have operations in Canada? I do not know if there are any statistics on this but a SME would have to operate across the Atlantic. This provision is generally for big companies.

Investment law is run by a few big law firms in Washington, London and Paris. They use this as an instrument to protect the interests of their client base which are multinational corporations. These commitments to offer ICS to SMEs should not be considered as being significant because, in practice, it will be used by these law firms for the interests of their clients. I do not expect much to come from it in helping SMEs in their fight against government regulation or intrusion.