Mr. Colin Brown:

The Deputy is correct that we are setting down general principles and they have to be applied in practice in concrete cases. The provisions we include in CETA regarding the investment court system have in place a number of protections and mechanisms to ensure the approach taken will be the correct one. If an investor were to bring a case, both Canada and the EU would be involved in the litigation. I have no reason to believe to expect that there would be but if there were a case concerning Ireland, we would also work closely with the Irish Government on that case. With a government involved, the parties would explain why a particular action was consistent with the treaty. There could be a question about what discrimination is, for example. As I said earlier, many international treaties have protections against discrimination and, as was noted, this is also protected against in the Irish Constitution. If there were such a case, there would be previous examples of how that is to be understood. The tribunal would rely on those principles and on what the two governments, or more as the case may be, that were involved would present to it. That is one form of protection.

The other form of protection relates to the mechanism that allows governments, if necessary, to provide guidance, in the same way that the Irish Government may legislate to guide the courts in Ireland on a particular issue. The parties under this agreement can agree on what is called a binding interpretation, which requires the tribunal or court to follow that interpretation. If there is any question or doubt, this is possible.

On the question about the ECJ, as I said the court in Opinion 1/17 examined all the questions being discussed by this committee and came to the conclusion that there was no risk to regulatory autonomy. It was examining that question in the context of one of the core fundamental principles of the EU, namely, that the European Parliament is elected by the peoples of the Union and, therefore, represents the democratic will of the Union. In its analysis, the court reasoned from how it could ensure, as a court of justice, that the ability of the European Parliament and the Council to develop law and progressive policy could be protected into the future. Because it was relying on these core issues and examining them, we can be confident that what the court held will not be changed in future. We can rely on it.

On the question about the relationship between the ECJ and the tribunal, this too relates to the ruling in Opinion 1/17 on CETA. This does not concern relations with regard to an Irish investor moving to, say, France. It applies only to an Irish investor going to Canada or a Canadian investor coming to Ireland. The ECJ does not have jurisdiction in respect of the question of the relationship of, say, an Irish investor going to Canada because it rules only on EU law and actions within the territory of the EU. In that respect, we are in the realm of international law and of what is provided for in Article 29.2 of the Constitution, which refers to the use of international arbitration for the settlement of international disputes. We are in that domain rather than in the domain of the ECJ, although the court was clear in the opinion I mentioned that it was satisfied with that structure.