Mr. Colin Brown:

Yes, I wish to address several points. I will return to this question of the chilling effect and pick up on Deputy Ó Murchú’s points as well. The job of academics and professors is to have opinions on questions of interpretation but, in this particular case, the European Court of Justice, the highest court in the European Union, has expressly looked at this question of whether there is an inconsistency or a risk for regulatory autonomy. It has come to the view, in paragraph 160 of its opinion, that “the Parties have taken care to ensure that those tribunals [of the investor court system] have no jurisdiction to call into question the choices democratically made within a Party”. Therefore, the European Court of Justice is saying in black and white that these tribunals do not have the jurisdiction to call into question the democratic choices which are made by the Irish Government, the Irish Parliament or other parliaments or governments within the European Union.

I also want to pick up on the revision of NAFTA and to point out that Canada and Mexico are also party to the CPTPP, the comprehensive trade partnership for the Pacific region, and that has investor-state dispute settlement in the old style compared with what we are putting forward in CETA. It applies there, it applies to Canada-Japan, it applies to Canada-Korea and it applies within the countries that are party to that. One of the issues we have in our investment policy is making sure that when EU investors are abroad, they have comparable protections to their Canadian competitors or their Japanese competitors when they are also investing in third countries, which is why this is important.

I want to pick up on Deputy Harkin’s first point on the link between trade and investment. Something we now know about the modern global trading system is that a great deal of trade is between related companies, and many companies, rather than simply exporting from one country to another, invest in that other country to better exploit the market there. Trade is not only via exports from one country and it also has this element of investing to better service a market abroad. Canada, being fairly far away from the European Union, is a perfect example where that makes sense.

In that context, the safety net we are talking about in CETA supports trade. It is part of ensuring that EU companies from Ireland and other member states can trade effectively with Canada and other third countries. One can reimagine this in an EU context. If an Irish company has set up a base in France and has an issue with French authorities, we need to keep in mind it can go to the French courts and, ultimately, the court of justice to protect it. This is not exactly the same but, in a way, similar. We are trying to ensure that, if a European company thinks the best way to earn an income and guarantee jobs is to invest, it has a certain level of protection.