Dr. David Fennelly:

I apologise as the sound broke up briefly. I thank Deputy Haughey for his interesting questions. There is a distinct change in tone between Crotty and Pringle in terms of how the judgments engage with sovereignty. The distinction between exercise and alienation is really at the centre of that judgment. I think it will be the central test whenever the courts come to this issue again.

First, regarding the ICC and the initial commitment to put the UPC to a referendum, it is important to understand that this took place before the Pringle judgment. Post Crotty, there was quite understandably a very cautious approach when it came to international agreements involving some form of transfer of sovereignty. The ICC on the one hand involves a certain transfer of executive and judicial power, but in a very limited area, which is the jurisdiction to try certain types of crime such as genocide, war crimes and crimes against humanity. There are obligations on the State under the Rome statute to co-operate with the ICC to arrest and surrender individuals suspected of crimes and also to give effect to decisions of the ICC. Because of those characteristics, there is a qualification of the judicial power and alienation of that judicial power in a very limited space, but in an important way nonetheless. It is against that backdrop that the ICC statute was put to a referendum. Whether one would do so today, in light of Pringle, is a more difficult question.

That brings us to the UPC. This has been rumbling on for some time. It has also found its way to the European Court of Justice. It is still on our agendas today. There has been a commitment by successive Governments to put this to a referendum. In understanding that issue, it is important to look at the specific characteristics of the unified patent court. In particular, that court has a lot of similarities with the traditional EU courts, the Court of Justice in particular, when it comes to the enforceability of its judgments directly within the member state. It is because of that particular quality of the court's structure under the UPC system and its decisions that Governments have taken the view, in light of Crotty and presumably still in light of Pringle, that it should be put to the people. That is why in looking at the CETA tribunal we must look at its specific qualities. I refer to particular elements of it which say that the CETA tribunal cannot express a view on domestic law or cannot make findings in respect of domestic laws and measures. We have heard different views about how far that may go. That is a feature that potentially distinguishes it from the UPC, but overall in light of Crotty and even now with Pringle there has been a cautious approach in this area because Governments are very concerned at the potential ramifications of ratifying, but with the risk of a challenge and the unravelling of the international commitment and all that that would entail.

I give some other examples of international agreements in the paper. Ireland has been an active supporter of international disputes settlement. It was the first state to sign up to the right of petition before the European Court of Human Rights way back in the 1950s and has been an active supporter of other forms of international dispute systems.

We have not participated as much in the investor protection sphere, as Dr. Suttle and others have outlined, even though foreign direct investment has been important to us. Our trade agreements with the US, which, again, date back to the 1950s, contain important investor protection elements but without the dispute settlement piece. However, there are many examples of international courts, tribunals and quasi-judicial bodies. The WTO was mentioned and it has a sophisticated dispute settlement mechanism, albeit one that has run into significant difficulty in recent years because of problems with the appointment of members to its appellate body. There are many examples of tribunals, not exactly like the CETA tribunal, but with some similar qualities which the State has signed up to without a referendum but each must be examined in its own terms.

I refer to the point on the domestic courts not directly raised with me but which is important. It is an important piece of the jigsaw that we should not neglect because even if the investor tribunal system were to fall away, investors from all jurisdictions, including Canada, have significant rights in this jurisdiction under domestic law, including under our Constitution, and the strong protection given to property rights over the years in the courts' jurisprudence in particular. We should not be too soft on the potential implications of this.

If one was advising one of these investors on whether to go for a CETA tribunal or before the domestic courts, in many instances, one might nudge them towards the domestic courts given the robust protections under our Constitution. It leads to similar issues we have talked about such as the balance between property rights and other important public interest policy objectives, which is the subject of an ongoing debate before our courts.