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

Not that I am aware of, but I can come back to the Senator on that. On climate goals, there is always a potential conflict between trade and climate. Trade, by its nature, means transporting things across seas and oceans. That can increase emissions but one has to look at these things in the round. There could be major advantages in terms of achieving our climate goals from increased trade and investment from Canada, particularly given their knowledge in the energy industry. I do not mean gas, but renewables and so on. There are potential benefits there.

The 20-year exit clause will only apply in the unlikely event of either party terminating the agreement. The purpose of the investment court system is to protect small and big businesses, individuals and pension funds from discriminatory and unfair treatment by the state. It is built around the core principles found in most domestic courts and international tribunals, such as permanency, the possibility of an appeal and the random allocation of cases. Were a party to deny an investor due process by simply terminating the agreement, this could result in significant adverse effects for the investor and would be against the principles of natural justice. Given that one of the main goals of CETA is to encourage further investment between the EU and Canada, which will facilitate jobs and improve prosperity for both parties, the agreement ensures only investment made under the terms of CETA is protected for a period of 20 years in the unlikely event that the agreement is terminated. It once again seeks to encourage and protect investment, which I believe is a good thing. It is important to note that only investments made prior to the agreement being terminated would be covered. The ICS provisions under CETA would not be available to new investors during a phase-out period.

On CETA being revised to permanently exclude ICS from the agreement, all international trade agreements have dispute resolution arrangements of some sort. Recent witnesses before the committee appear to have indicated there is very little appetite for reopening the agreement, from either the EU or Canada. I can attest to that. There is a fear that would lead to a Pandora’s box situation regarding adjustments to the current text of the agreement. Once the agreement is reopened, all the agreement is reopened. I can attest to that when it comes to other negotiations I have been involved in. Having negotiated a text that has been agreed and ratified by most European states over almost a ten-year period, there is no appetite to reopen it. If we sought to exclude the dispute resolution mechanism, it is not clear what value the protections set out in the agreement would be worth if one cannot vindicate one’s rights. The protections are intended to encourage investors in terms of the security of their investments.

We need to remember that the provisions of CETA are not judicable in our domestic courts because CETA is not part of our national law. In the absence of ICS, a Canadian investor would be required to progress a case under the respective national law and constitutions of 27 member states. If we are confirming protections in CETA, we need a way that they can be vindicated. I believe using arbitration and in a single consistent framework across 27 member states is a practical option.

There is an attempt to make it less costly for SMEs to engage in dispute resolution than is currently the case. CETA includes specific provisions on mediation which do not exist outside EU agreements. These are of relevance to SMEs, as mediation represents a low-cost option compared with full litigation in the courts. CETA encourages parties to a dispute to solve the issue amicably within 60 days, rather than go through litigation. The possibility to have mediation is available at any time in the proceedings.

The provisions allowing parties to hold consultations via video conference, which is easy and of low cost, can be of particular benefit to SMEs. Procedural deadlines also make proceedings faster and reduce the cost of litigation. As I mentioned earlier, an SME has the option, on request, to submit claims to a single judge which would make proceedings faster and cheaper. It seems that ICS might be a better option for SMEs rather than relying solely on national courts.