Dr. Oisin Suttle:

It depends on the rules of arbitration that are chosen and that choice is with the investor. One option an investor suing Ireland will always have is to go under the ICSID convention regime - the International Centre for Settlement of Investment Disputes - because we are parties to that convention. If the arbitration is under the ICSID convention then no court anywhere in the world has any oversight role in relation to the arbitration. The only remedy that the ICSID tribunal provides when something goes wrong in arbitration is an application to ICSID itself, which essentially is a World Bank sister organisation, to annul the award. To date there are 285 awards under the ICSID convention. Of those, 66 have been challenged with an application for annulment, five have been annulled in full and 12 have been annulled in part. What does this tell us? It tells us that at least under ICSID there is no role for the courts in supervising. The supervisory jurisdiction of ICSID itself is a very high bar to cross. Once the decision is rendered and is not annulled by ICSID, it is enforceable in the courts of any ICSID party and any European convention party. It is enforceable in Ireland. The Irish Arbitration Act provides that the result of an arbitration under the ICSID convention is not subject to any review by the Irish courts at the point of enforcement. There is scope for the Irish courts to examine any other arbitration from a public policy perspective. If it is an arbitration under the ICSID convention, which is what a CETA investment tribunal decision will be, then the Irish courts have no power to do anything except give effect to it. The Minister for Finance is empowered to do one thing and one thing only, which is to write a cheque.

On Deputy Duffy's question on the difference of this tribunal, I will stay away from judging it from an Irish constitutional point of view because there are things I know about and things I do not. The Irish Constitution is something I will definitely leave to Dr. Fennelly. Deputy Duffy asked what is different about this, and there are some key things to look at.

One aspect is revisability, which we have touched on a number of times. If Ireland wants to leave the European Convention on Human Rights it can do so. It takes six months. If Ireland wants to leave CETA then it needs to leave the European Union and Ireland would still be stuck with it for 20 years after that. From a non-technical and non-constitutional perspective that seems like an important question with regard to deciding what sort of constraint on sovereignty Ireland is accepting.

A second aspect is impact. Where are the really big powerful decisions happening, such as decisions that can really push states around? They are happening in investment arbitration. If one contrasts the sorts of implications for a state of an adverse decision in, for example, a World Trade Organization, WTO, health body versus an investment arbitration decision, it is much easier to find a workaround in the case of the WTO dispute settlement system than it is in the case of the investment system.

The third aspect is enforcement. Because decisions of the CETA tribunal are, at least formally, arbitration decisions they are enforceable under the ICSID convention and under the New York convention. This means they are much more legally powerful than the decisions made even at the European Court of Human Rights. Ultimately, enforcement of a decision of the European Court of Human Rights is a political matter. I see Dr. Fennelly knitting his brows and he may have a different view on that. Enforcement of one of these decisions is much more automatic, once one gets past that relatively low bar of ICSID annulment.

Those are the factors to consider, not as a constitutional lawyer but rather as somebody who thinks about international law and the way it constrains states in pursuing their policy goals. Deputy Duffy asked a yes or no question about whether this will constrain public policy, and the answer is "Yes". I do not think it is sensible to think that there will not be at least some constraint. The extent of that constraint will depend on how it is interpreted. Ultimately, this certainly puts some bars around what Irish Parliaments can and cannot do. Those are new bars additional to the ones already there in the Constitution from European law and so on.