Alice-Mary Higgins (Independent) | Oireachtas source

I have two questions. The first is for Dr. Ankersmit. There is a different treatment of regulation in Article 8.9.2 of CETA versus the treatment of removal of subsidy in Article 8.9.4. It is notable that Article 8.9.2 states that the "mere fact" of regulation is not a breach. That has been dealt with very well, whereas Article 8.9.4 states that the removal of a subsidy should not be seen as requiring a party to compensate the investor. There is a different protection there and it seems to make it explicitly clear that the parties have chosen not to take away the requirement for compensation in respect of regulation. Regarding the European Court of Justice ruling 1/17, Dr. Ankersmit has made it very clear that the arbitrators are not bound by that ruling. They may consider domestic law but are not required to do so. Their balancing, even in those proportionality tests, does not need to consider those things. I am interested in the payment structures.

We have talked about the appointment but the payment structures have been identified as an issue of concern . The ECJ 1/17 ruling, as I understand it, explicitly asked that the payment structure system of the ICS be fixed and addressed with sufficient time to allow member states to consider it in their ratification process. It has not really been changed, as I understand.

My next question is to Dr. Fennelly in respect of the open-ended aspect. The 20-year exit clause has been called a zombie clause or a sunset clause. The 20 years for which the ICS would apply, even if Ireland decided to leave, would exceed the terms of three or four parliaments. Could that create a tension?

My final question is for anyone who wishes to comment. Dispute mechanisms between states are continuing in agreements and investors are being removed. There is a difference between dispute mechanisms between states that are parties and are making agreements with each other, and giving powers to investors that are not parties to the agreement. That seems to have been the trend in the UK, China and elsewhere.