Alice-Mary Higgins (Independent) | Oireachtas source

The Tánaiste mentioned there is more regulation all the time and there are still many trade agreements. However, as there is more regulation, particularly in the area of the environment, more cases are taken by investors for compensation in respect of that investment. Some 80% of investor claims have been taken in the past 15 years. The number has increased year-on-year. As we have more regulation, there is a relevant factor, so that where there is more regulation, we see more cases taken. That has been acknowledged by the European Commission in respect of the energy charter.

I have been on the board of a very small company and we conduct a risk analysis. Of course, it is about imagining scenarios. Frankly, the idea that the Department of Enterprise, Trade and Employment has not conducted a risk analysis is cause of concern for everyone. Something that could be considered in that is a risk analysis on the legal cost. Even the infamous Phillip Morris case, where Australia won, it paid a €12 million legal fee. We spoke of the decency principle but the fact is countries pay large costs even when they win. Then there is risk analysis on areas of policy where we may have exposed ourselves. One of the grounds for claims of unfair and inequitable treatment is under Article 10.2 of CETA where representations have been made to investors to induce investment leading them to have a legitimate expectation of operating in a particular area. A very clear example might be REITs, which have been encouraged to invest in a certain way in property, as well as many others who have been encouraged and supported. What is regarded as encouragement and inducement in case law under ISDS is often as simple as giving planning permission, giving a grant or a meeting with a representative body of the State. These can be regarded as creating legitimate expectation and then creating a vulnerability when regulations in that area are changed to a claim for compensation. We need to be really clear. No one is talking about whether the State can regulate; that is not the question. The question is: when the State regulates, is a potential liability added by this ICS for compensation in respect of companies that feel they have been unfairly or inequitably treated? The Tánaiste indicated that we do not need to worry because we will not discriminate. Is he telling us that all policies in these areas where there are investors from Canada will be examined and that we will ensure that we form those policies in a way that will not leave us vulnerable to cases being taken? Is that why he is confident we will not discriminate? Is it because the Department has conducted a full review of our exposure to investors and such things we have done that may constitute inducement?

It is correct that there are arbitration mechanisms in all trade deals but it is also the case that increasingly those arbitration mechanisms are solely between the parties, that is, the countries or blocs, not private investors. In the UK-EU deal. there is arbitration between the UK and EU. In the new deal between Canada, the US and Mexico, there is a very limited access for investors to arbitration mechanisms. One reason for this is internationalism, because there is increasing realisation that Europe shares international goals with Canada regarding climate, sustainability and so on, and they could be undermined when an individual company that does not have to share those values decides to take a case in respect of its interests. In that context, is the Tánaiste concerned that there may be diplomatic or international damage if an Irish company were, for example, to sue Canada for taking an action that damaged the company's interests and that the company might have thought was unfair, but that was in line with our collective international goals in areas such as climate?

I am asking explicitly around discrimination and what mechanisms will be in place to anticipate and look at questions about whether there might be discrimination and the risk assessments that might be taken.