Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

I agree with Deputy Howlin on a few points. We have no concerns about the domestic court system in Canada and I do not think that Canada has any concerns about the domestic court system in Ireland. I am not sure if that is necessarily the case for every EU country. There are some EU countries which unfortunately do not uphold the kind of legal standards of independence of the courts as we do, and we need to bear that in mind. ICS will work as an arbitration tribunal. One person from Canada, one from the EU and one independent. Before going down this line, a company has to decide if it is going to use the court system or whether it will use the investor court system. They must consult with the Government, mediate and then arbitration occurs. The advantage is that it will be easier for Irish companies in Canada. They might not choose to use the mechanism but if they run into difficulties, in the unlikely event they are being discriminated against or treated unfairly by Canada or a government agency of Canada, they can opt for this system rather than having to navigate different provincial courts, for example. Similarly, for a Canadian company investing in the EU, having this one simple mechanism that they can understand and take part in as an alternative to particular domestic courts, all with different systems and constitutions. It is an advantage in terms of investment and will help to promote investment. Companies will be more likely to invest in the EU and EU companies more likely to invest in Canada if we have this mechanism than if we do not. However, we need to be very clear about what it can and cannot do. Unlike the courts, it cannot overturn or strike down domestic legislation, it cannot decide that anything is ultra viresor unconstitutional. There is no concern about that with this mechanism.

The Deputy stated that sometimes in European politics, if a country is a particular concern or if there is a bottleneck, we get together politically and use our ingenuity to resolve matters. When Ireland initially rejected the Nice and Lisbon treaties, we saw how we could sit around a table and, without changing the treaties much, give reassurances to people that helped the treaties be ratified. I take the Deputy's point in that regard. It is only true to a point, however, and I think we have reached that point because that has been done. The ISDS was changed to an investor court system. We had the hearing of the European Court of Justice, which determined this was consistent with EU values, EU law and EU principles, and there was the joint interpretative instrument, so I think we have already been through that process. Steps can be taken to reassure people and to allay fears, but there is a point at which we can go beyond that. I think we have already reached that point.

As for what would happen if a member state definitively rejected CETA, I am advised that in order to formally communicate the completion of their national procedures, member states are required to officially notify the General Secretariat of the Council. Were a member state to lose a vote on ratifying the terms of CETA, it might choose to engage in a period of discussion regarding the possibility of charting a path forward towards a positive endorsement of the agreement. If a member state were unable to ratify CETA and this represented a permanent and definitive position, it would be obliged to formally notify this to the General Secretariat of the Council prior to any action being required on the part of the Commission. If that were to happen, it would be the first time for any EU trade agreement - I would not like Ireland to be the country to do that - and the Commission would engage with member states regarding the implications. The possibility of termination of the provisional application would arise and could be determined by qualified majority voting, QMV. The idea, therefore, that we have banked the good bit of CETA and that is grand, and that we do not now need to ratify the second bit or try to get it changed, is not entirely true because there is the possibility of the provisional application being terminated, and that would do harm economically.