Mr. Philip Kelly:

The ICS should be looked at as a standard approach which would apply in all trade agreements. It could be said that Ireland has benefited greatly from foreign direct investment. We have done that in the absence of an investment agreement with anybody. Our EU partners have 1,600 investment agreements with countries around the world, so in some cases inward investors into Europe might be concerned about how they would vindicate their rights, how they would protect their intellectual property and how they would extract their capital. There may be concerns about some countries regarding the separation of powers, the protection of intellectual property and a whole range of issues.

It would also be very difficult to ask a Canadian investor to invest in Europe and deal with 28 different constitutions and legal systems of jurisprudence. Looking at Europe as a single market, a Canadian investor would like to invest in a place with a single set of investment protection rules. The investment protection rules proposed in the ICS are not the law of the European Union and they are not the law of Ireland. They are an arbitration mechanism under this agreement which can be opted for. A Canadian firm owning a firm in Ireland can sue the Government in the morning. If the Government causes harm to a Canadian firm here, it can go to the Four Courts and sue it. The investment protections apply a common set of rules in 28 member states that would be applied by a single panel of people as an arbitration mechanism and as an alternative to using the domestic courts. A Canadian investor unhappy with the actions of the Irish Government can go to the Four Courts and sue the Government and find that the Minister or the regulatory body was acting ultra viresor that the action taken against it was unconstitutional.

From our perspective, the outcome of going to the investment court system, ICS, was that the person was deemed to have been harmed and due compensation. There is no question of the ICS panel overturning an Act of the Oireachtas or finding something to be unconstitutional. It cannot do so. It cannot even make a finding that an Act is legal or illegal. It can only state that, based on the terms of reference of the agreement, an investor was treated in an unfair or inequitable way and discriminated against. It can state the investor was damaged and what the level of compensation should be. As I said, there is no question of it being able to overturn any Act of the Oireachtas or a decision of the Minister or a public body.