John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The committee has been convened to continue our consideration of Committee Stage of the Arbitration (Amendment) Bill 2025. Once again, I welcome the Aire Stáit and his officials.

I advise members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex in order to participate in public meetings. I will not permit members to participate if they are not adhering to this constitutional requirement. Therefore, a member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I ask any member taking part via Microsoft Teams to confirm, prior to making their contribution, that they are on the grounds of the Leinster House campus. It is important to note that in order to participate in a division in committee, members must be physically present in the committee room. In other words, they cannot vote from a remote location.

Members are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Deputy Duncan Smith has spoken on amendment No. 12, in section 4. Is there anybody else who wants to make a contribution on it?

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

This is Deputy Duncan Smith’s amendment. It was discussed for a period and much of the discussion seems to have been about the generalities of the legislation and its effect. The amendment relates to some extent to the subject of the court case, which concerns the circumstances in which the judgment of an investor court could be set aside under Irish legislation. That is a fundamentally important point in the context of constitutional arrangements and the ability of our courts to have the final say. It is the position of the Government that it will be possible for Irish courts to set aside judgments of investor courts where they are in conflict with Irish law. In the legislation, the circumstances in which that would be the case are not all clear. That has not been clarified. The amendment was tabled with this in mind. It underlines the fact that it is important to have a clear statement in our legislation that decisions of the kind in question can be set aside. If not, it would undermine our own jurisprudential system and the ability and sovereignty of our courts to some extent. This reflects the purpose of Deputy Smith’s amendment. He might return to make the point further himself.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The amendment seeks to determine the constitutional order of the State. It has been deliberately left out of the legislation and that is on the advice of the Attorney General. The legislation is designed to allow the State to ratify the trade agreement with Canada. We believe this is a uniquely good thing to do. Relations between Canada and Ireland are at an all-time high in terms of diplomatic, personal and business relationships. We take the view that the proposed amendment is unnecessary and prescriptive, and that is a matter for the courts to decide. The bottom line is that we do not agree with the Opposition’s view on the EU-Canada Comprehensive Economic and Trade Agreement, CETA, or share its exaggerated concerns as to how the Irish courts are going to operate the new provisions. It is not possible to imagine circumstances in which the events described in the Opposition’s scare stories about trade with Canada will actually happen. We do not share the Opposition’s view and believe the amendment is unnecessary.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Let me respond to that. On the generalities in terms of scare stories and so on, I understand cases have been taken against the Irish State under the energy charter. That operates on the basis of an investor court settlement-type system. We are seeking to withdraw from that. To my understanding, one of the reasons is that we could be, or have been, at risk of being liable. Take the North American Free Trade Agreement, for example. The most recent version of it seems to walk away from the investor court settlement system. I do not believe that is a scare story by any means. Numerous examples have been given in this chamber and other locations of the manner in which states can be put on the hook. The Minister of State has said that he has deliberately left out in his legislation the basis on which the Constitution comes into play, along with the authority of the Irish courts. I ask him to clarify the circumstances in which Irish courts can set aside decisions made through the investor court settlement system. This relates to the key point on which the Supreme Court judgment hinged.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

We are not going to be prescriptive on what the court does. The courts have extensive and inherent powers under our Constitution, as well as under the European system.

We are in the process of withdrawing from the Energy Charter Treaty. People have raised issues in relation to that, of course. The truth about that is that four notices of dispute have been received but no arbitration or court proceedings have commenced so far with respect to them. There may be one, but there has been no commencement as of yet. We are not concerned about this. The reality is that we are not using the particular investor court system any more in the newer treaties. The Deputy is right to say this but there has been extensive modification, interpretation and explanation regarding CETA to allay the concerns that were raised. Every effort has been made to allay all the concerns raised. It is surprising that we continue to hear these concerns in relation to the matter because, in my view, the agreement is unambiguously good. That is the difference here. If we were simply to scrap CETA and start again with it, we would just turn the clock back on the really positive trading relationships that are creating jobs in the Deputy’s constituency and every other constituency in this country. The trade agreement is the trade agreement. It is being implemented provisionally at the moment but it does require ratification to operate on a long-term basis. We are following the advice given in the Supreme Court to put in place this legislation, which will allow us to be in a position to ratify CETA.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

That is the problem. I do not believe the Government is really doing what the Minister of State said. It is an issue if we do not know the circumstances.

That was the key point in the court case. The Constitution requires the fundamental place Irish courts have and it is very clear in what circumstances these court decisions can be set aside. It is not clear in this legislation. I do not know. The Minister of State has not been able to tell me. The logic of what the Minister of State said is basically that trade agreements are good. Some trade agreements are good. Some are less good. The Minister of State agrees. He does not agree with the Mercosur trade agreement. He does not think that is a good trade agreement.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The Government did not support the Mercosur agreement but has acknowledged the pluses and minuses of it. There is also advice to the Government on it that is publicly available on the website. The website sets those out.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Sure. I am not trying to misrepresent the Government's position. It said there were arguments for and against it, but by and large-----

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Due to agricultural concerns.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

-----it decided it should vote against it. Therefore, not every trade agreement de facto needs to be accepted lock, stock and barrel. On that basis, the Government's position - and it is my position - is that it evaluates each trade agreement on the basis of merit. That is fine. I agree with it 100%. The rest of what the Minister of State said was that Canada is a democracy, is a good country and has a Government a lot of whose principles we agree with, not all, but by and large it is like-minded. That is fair enough. I agree with that.

The equivalent argument in domestic legislation is that most citizens are good people and well intentioned and therefore we do not need to worry too much about safeguards in criminal law or ensuring in the instance that someone veers outside the norms we are used to, there are any sanctions. That is the equivalent argument. It is that these are good people. We can trust them. We need not worry about the provisions of the safeguards. I do not agree with that. Even with countries we have clearly friendly relationships with - and we do; Canada is a country we should trade with and it is welcome that there has been an increase in trade - the point is that there has to be a clear sense, legally. In terms of the Constitution, because of the way this legislation is drafted, it will be struck down. The courts will decide that no guidance is being given to them. It lets the courts decide. We are not telling them in which circumstances they can set cases or judgments aside. It is not unreasonable to ask in which circumstances the Irish court system can set aside a decision or settlement made by these courts.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The Deputy seems to be looking for a prescriptive definition with a list of circumstances in which the courts can take action to overrule an international arbitration. We think the court should have broad power. The broad power is that these decisions are not enforceable if enforcing the award would compromise the constitutional order of the State or the autonomy of the legal order of the European Union. That gives the courts broad scope to interpret this. What the Deputy is trying to do is limit the role of the court and the power of the court by setting out specifically in which circumstances the court can make a decision. We are leaving it to the court to decide if an award made, as the legislation says:

by a body empowered to make awards ... would compromise a) the constitutional order of the State, or

b) the autonomy of the legal order of the European Union.

The amendment seeks to define "the constitutional order of the State" and that is not necessary because this term has previously been used by Irish courts and it is a matter for determination in the ordinary matter by the High Court. We do not want a list or definition that includes some things and then to find out down the line that fears become realised but something has not been included. Here we have given broad scope to the courts, which is the proper way to do things, not to fetter their discretion or dilute their ability to deal with whatever circumstances may face them. I do not see these circumstances as a realistic possibility, but I am, or the Government is, actually going further than the amendment proposes to do with the wording that is there. Once we start to define something, we will be including some things and not others.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

So we have never debated legislation in these Houses that included non-exhaustive definitions.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

When creating a criminal offence, it is necessary to be very precise about what it is, because people will be charged and convicted on the basis of the very precise ingredients of that offence. However, here we are dealing with the power of the court not to compromise the constitutional order of the State. The Supreme Court and the courts are the fundamental guardians of the Constitution and they are entitled to judge this for themselves. This legislation allows that in a very broad way. I would have thought from the Deputy's point of view, having it defined in a broad way is beneficial, works and includes any of the circumstances he would. I know lawyers will always want to define legal terms as including this, this and this, but that is not what we want to do and if the Deputy thinks about it, I am not sure it is what he should want to do either, quite frankly.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

We are well used to definitions that are non-exhaustive. That goes beyond criminal law. It can include what Ministers might be empowered to do under legislation, the kinds of powers they may have, not being "limited to". That kind of phraseology regularly appears in legislation. The Minister said the Government has given a broad definition. I do not think it can be categorised as a definition at all. It is not at all clear. I suspect it will go to the courts and I think they will find it difficult to define the circumstances in which they can set these judgments aside.

These are not small sums we are potentially talking about. For example, under the energy charter, I understand one of the cases that has been taken against Ireland, which has not yet reached the courts but may, deals with sums in the region of $100 million. It relates to a particular oil and gas exploration case. These are substantial cases. It is equally the case in many other cases. These are not small matters. They have real implications for our constitutional order, but also for the Exchequer.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Some of the cases the Deputy is referencing are part of an old, long-standing system of investor-state dispute settlements. The new investor court system is included in this new generation of EU agreements and the Bill enables us to ratify the CETA agreement. There are significant and targeted improvements to address concerns that have been raised. The concerns the Deputy is raising have been addressed for a long time and there has been a huge effort by the European Commission, the member states and the Irish Government in particular to address any of the concerns the Deputy raised, because we see this prize of dealing with a friendly country, a country whose Prime Minister has four Irish grandparents. They are not strangers to us. This is a country we know well. It is a country we do a lot of business with and the result of this will be to create a lot of jobs.

The investor court system is different from some of the ones that have been mentioned in this space previously. The section the Labour Party amendment seeks to change and to narrow the definition of is important in addressing the concerns the Deputy raised. I cannot put it any more clearly. It is for the courts to guard the Constitution. It is not for the Executive or the Legislature to tell the courts how to be guardians of the Constitution. They are entitled to do so and we are not entitled to tell them how to guard the Constitution because the interpretation of the Constitution is their function. We have to uphold it as best we can and this Bill, without the Labour Party amendment, allows the courts to do their basic job.

We rarely see investment disputes. There are some, but they are relatively rare. Were there to be expropriation by a government, I have no doubt there would be a case, but if there were expropriation by a government, people would have a case under the Irish Constitution. They would not have to go to a trade agreement. There are certain rules the Government is required to comply with, under the Constitution, the European Convention on Human Rights and many other layers of law that are already there for people to assert constitutional rights against overreach by the State, so it is difficult to imagine, as I said previously, that they would ultimately have to go to an investor court to somehow get something addressed that is in breach of the basic constitutional fundamentals of the State. It is just not likely to happen. There are so many guardrails and protections in place that I cannot put it any more clearly. The Government thinks the amendment makes the thing too prescriptive and we cannot agree to it.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

That makes the argument that those of us on this side are making. There are plenty of remedies available to businesses and individuals under Irish legislation if they feel their rights have been breached. This comes into play if people feel there are not adequate avenues for them to pursue a breach of their potential for profit or whatever under Irish legislation.

They then go to the investor court system envisioned under this legislation. An Irish citizen or company decides they are not satisfied with this and takes the court to the Irish High Court and then to the Supreme Court perhaps to say the decision of the investor court settlement is not in line with Irish law, and the Irish courts are not clear in what circumstances they consider this.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

They are very clear.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

It is for the courts to protect the Constitution but it is not for them to make the law. It is for these Houses to make the law and to outline in what circumstances particular parameters apply to court systems and what the court structures might be. That is a matter for the Oireachtas. It always has been.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The Oireachtas is a law-making body, but it is for the courts, the Supreme Court, in particular, to interpret the Constitution and to guard that Constitution-----

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

And to interpret legislation.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

That is all we are asking them to do. We are saying that they will not enforce an award if that award would compromise the constitutional order of the State. This is a term that has been used in a number of cases. We think it is best left to the courts as the guardians of the Constitution, because that is their job. We could never set out as an Oireachtas what is or is not constitutional, or what is or is not protected under the constitutional order of the State. We are not doing that here. Actually, we are going further than what the Deputy is looking for because once you define something, you narrow it. It has been left very broad. It is hard to push it any further, but I am happy to answer questions.

Duncan Smith (Dublin Fingal East, Labour)
Link to this: Individually | In context | Oireachtas source

We had a long enough session a few weeks ago on this. The one thing that has emerged since then has been the EU-Australia trade deal agreed this week. Australia and Canada are probably two of the most comparable countries one could possibly have in terms of entering trade agreements. They are liberal democracies, western economies and economies of similar size. Both have large mining industries. The big key difference is there is no investor court system in the EU-Australia deal, yet we have one in the CETA deal. That is a good thing. We do not need one. We do not need one for the EU-Australia deal or for CETA. It is a point worth making because it further damages the Government's argument.

I assume the Government will be supporting the EU-Australia deal. On the first read of it post agreement, I do not see that there is anything too onerous in it either from our point of view. It will demand further study, but it does not have the investor court system. That is the one big difference. It does not need it. As the Minister said in making the opposite point, our Judiciary is robust and there are all those guardrails. This is another argument as to why this legislation is sticking out and why CETA sticks out. I do not have another two hours like we had a few weeks ago, but it is worth putting on the record.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 13:

In page 4, between lines 19 and 20, to insert the following: “(3A) For the avoidance of doubt, it is hereby declared that an award made by a body empowered to make awards pursuant to an international agreement to which this section applies is not, and never was, enforceable in the State if enforcing the award would compromise the State’s ability to achieve the objectives provided for in the Climate Action and Low Carbon Development Acts 2015 to 2021.”.

This amendment has two principles underpinning it. The first is in relation to our commitments to reducing our emissions, through our objectives in terms of the environment and protecting the environment. Many of the investments envisioned are in the area of energy or fossil fuels, speaking frankly and bluntly. The reality is that in other trade agreements, structures and treaties, investor courts have given huge sums to fossil fuel companies - about €100 billion of public money has been awarded to private investors in investor-State dispute settlement courts, according to comprehensive analysis by the ISDS tracker organisation.

The other element of it is are two items of Irish legislation, namely, the Acts from 2015 and 2021. They are in the Irish Statute Book. Therefore, they should trump any decisions of investor courts, were they to come before an Irish court.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

As we have stated repeatedly, the Government has been advised by the Attorney General and carefully considered the Supreme Court's findings in the Costello case. What this legislation seeks to do is to use the Costello case to allow us to ratify CETA. This legislation is a response to that case and includes the specification of the grounds in which an award is not enforceable in subsection 3, as already discussed. This amendment from Sinn Féin seeks to expand those carefully considered provisions. We see this amendment as totally unnecessary because CETA commits the European Union and its member states and Canada to provide for and encourage high levels of environmental protection, as well as to strive to continue to improve such laws and policies and their underlying levels of protection. CETA further expressly preserves the rights of the parties to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, safety, the environment or public morals.

As set out in the joint interpretive instrument, CETA includes commitments to co-operate on trade-related environmental issues of common interest, such as climate change. In CETA, the European Union and its member states and Canada have further agreed not to lower levels of environmental protection in order to encourage trader investment. In the case of any violation of this commitment, Governments can remedy such violations regardless of whether these negatively affect an investment or an investors exploitation of profit. We do not see this arising. There is no possible way an investor could come in and think that its investment is going to be stopped because of climate change rules and it they would get compensated for it because CETA and the joint interpretive instrument around it could not be clearer that the Governments are entitled to regulate on the environment. Governments will continue to regulate on the environment. Government policies are very well-known in relation to the environment and climate change and we do not see this as necessary.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Apart from that last sentence, the Minister of State spoke about reassurance that a lot of work had been done to provide reassurance. Most of the work to do reassurance at a European level is at a political level. The reassurance has effectively been to say that these are good people, we can trust these people and that this is a government that we have good relations with. We do. That is not disputed at all. There is no question of that from this side. No reassurance has been provided on the legal side in terms of protections. Things can change. Relationships can change. Sometimes a company from one country that takes a case has nothing to do with the political priorities in the government of the country they are from. For example, even if a Canadian government has good objectives in terms of reducing emissions, if a company in Canada involved in oil or gas exploration takes a case on potential loss of earnings because they were not permitted to do some action because of the provisions of Irish Acts to the investor courts, which was then brought to the Irish courts, is it the Minister of State's position that in a dispute between somebody and a company that had won at the investor courts, would the individual be able to win that case on the basis of provisions in the Irish Acts, namely, the climate action Acts?

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

All I can do is quote from the language of the CETA agreement. Article 8.9 of CETA reaffirms the rights of the European Union, Canada and the member states to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, safety, the environment or public morals, social or consumer protection, or the promotion and protection of cultural diversity. The agreement goes on to provide that the mere fact that the party regulates, including through a modification to its laws, in a manner which negatively affects an investment or interferes with an investor's expectations, including its expectations of profits, does not amount to a breach of obligation under CETA.

Again, we have here an extremely broad-based right to regulate for the State, which is what one would expect. States such as the member states of the European Union and Canada regulate in their countries. Investors know this. We have very specifically provided a broad recognition of the rights of states to regulate. We have not specified one particular piece of legislation, which the Sinn Féin amendment seeks to do. There may be other climate legislation, and that would also be covered by the language of CETA and our ratification of that agreement. The Deputy set out one piece of legislation but we can legislate until the cows come home on climate and an investor would not be able to sue the State because of that legislation, as provided for under the CETA agreement.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The Minister of State talked about reassurance. The response to many of the amendments that have been tabled is likely to be that they are not necessary. It is not that there is a fundamental disagreement about them. To my mind, a lot of them are necessary, given the concerns that exist and the lack of clarity in regard to the circumstances. In my view, it is necessary to provide clarity and ensure our legislation is very clear. For the avoidance of doubt and for clarification, the Government regularly makes it crystal clear that certain legislation still applies, even in the circumstances envisioned. I propose to press the amendment.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 14:

In page 4, between lines 19 and 20, to insert the following: "(3A) For the avoidance of doubt, an award made pursuant to an international agreement to which this section applies shall not be enforceable in the State where such an award has been sought or obtained in another jurisdiction.".

This amendment addresses a concern related to forum shopping, something the State itself has been anxious to avoid in other areas of public policy. The amendment provides that "an award made pursuant to an international agreement to which this section applies shall not be enforceable in the State where such an award has been sought or obtained in another jurisdiction." Forum shopping has happened in other investor court systems where investors who were not satisfied with the result in one jurisdiction sought to move a case to another jurisdiction. The assets of states have been seized by foreign courts in the form of an investor-state dispute settlement, ISDS, award. In the most well-known instance, this happened to the Spanish Government as part of the enforcement saga of investment treaty arbitration issued in the renewable energy disputes against Spain. An investor from Luxembourg, formerly known as Antin, secured a seizing order from the British courts directed at property in London owned by the Government of Spain.

We have talked about whether some of the concerns expressed by the Opposition are fantastical or exaggerated. In this set of circumstances, Spanish Government assets were seized in Britain on foot of a decision awarded in favour of an investor from Luxembourg. This is where sovereign states come into play in relation to this. In March last year, the European Commission ruled that paying this award constituted illegal state aid and directed the Spanish Government not to pay it. By virtue of its exposure to investor courts, the Spanish Government, having had assets seized in Britain, was told by the Commission that this was illegal state aid. I understand some of this continues to be disputed. While this is obviously a legally complex matter, the case underlines the weight of the issue. We need to prevent forum shopping and we need to be very clear on that in Irish legislation.

Has the Government carried out any risk assessment of this happening, both in terms of action being taken by the European Commission on illegal state aid or in relation to actions being taken against Ireland in the event that it does not apply an investor court decision?

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Again, we do not think this amendment is necessary. It is a fact that no cases have been decided under this particular system of investor courts. There were some cases under the ISDS system, which is common to old agreements. People are pointing to those agreements as perhaps being a problem but things have changed since then. There is a different system in place.

We do not see any basis for a fear of forum shopping. The amendment seems to be based on a misunderstanding. What is envisaged in the new section 25A is an award being enforced. We cannot see how an award could be in any way sought or obtained in another jurisdiction because the legislation specifically refers to a relevant tribunal established under the applicable international agreement. This legislation is premised and based on a decision of a relevant tribunal, not on the decision of any other arbitral or judicial body. Therefore, we do not think this amendment is necessary.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

On the difference between the new system and the old system, I am not sure the fundamental architecture has changed much. What we have is more and more countries walking away from arrangements like this and in the meantime, the treaties and organisations that are still using them have kind of rebranded them. My understanding is that the primary difference is that this one is more publicly arbitrated and, therefore, people might argue that there is more transparency. However, I have not seen anything from the Government that demonstrates the manner in which the legal force of the system is any lesser. Its legal force is the key point in relation to how these decisions are enforced and disputes between the ISDS or the investor court system and the Irish or Spanish courts, or any other courts, are handled.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The ISDS system is an old system. It is gone. We have moved on to this investor court system. As has been pointed out, we have actually moved on again since then because the CETA situation has gone on for so long. The old system was the provision of basically ad hoc tribunals, which were not satisfactory in the way they were run. The new system, which is in the CETA agreement, has definitely introduced significant improvements to the way investor disputes can be dealt with. The new system involves a standing panel of arbitrators, which was not the case previously. The arbitrators must ensure they remain available to act as arbitrators on tribunals when called to do so. They are paid a monthly retainer to ensure they remain available and, therefore, cannot be involved with one of the parties, which was a problem with the previous system. They are also to refrain from acting as counsel or as party-appointed experts or witnesses in any pending or new investment dispute under CETA or any other international agreement. This obviously helps to ensure the independence and impartiality of tribunal members.

Cases decided under the old system do not give any indication as to how this might work. As I keep saying, the protections and safeguards are extremely broad based. Again, we think this particular amendment, amendment No. 14, is not necessary.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The difference is in how the arbitrators are appointed and how well we can see their decisions. They sound like improvements by and large, which is fine, but do the new systems have less power than the previous systems?

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

They make disputes in accordance with their powers under the trade agreement. It is all governed by their own agreements. Those powers, as I keep saying, are subject to this legislation we are trying to put through. It is subordinate to the protection of the constitutional order of the State and the autonomy of the legal order of the European Union, as the legislation sets out. We subordinated all of it to that.

Other than that, it is in the trade agreement in terms of its-----

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

While there are changes in terms of transparency, appointment and permanence, ultimately, the powers are much the same as they were, they are relevant to the statute or the outline of the agreement under which they are made and, therefore, the same potential for forum shopping exists. As such, why not put in place a provision to protect ourselves, under Irish legislation, from the potential for that kind of forum shopping?

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

It is because the type of award envisaged under this legislation could never be sought or obtained in another jurisdiction because the legislation only relates to the tribunal established under the international agreement that is applicable in the particular case. That scenario is not possible because this legislation applies only to the relevant tribunal. There are significant restrictions regarding the settlement of disputes. I have already read out that the issues about which the Deputy is concerned, which have been talked about for years, are covered in the CETA agreement. The states are entitled to regulate to achieve legitimate policy objectives to protect public health, safety, the environment, public morals, social and consumer protection and the promotion and protection of cultural diversity. The State is allowed to modify its laws, so the State can change its laws as well. That is a significant restriction on any imagination of what the powers of these investor courts might be, in terms of the worries that have been expressed. It is a huge restriction on what they can do and is written into the trade agreement. If the agreement is ratified, they will be restricted under Irish law, in the section we are dealing with, in terms of subordinating all of it, including any award, to the constitutional order of the State and the autonomy of the legal order of the European Union.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The issue arises when there is a dispute between the court of one country and the court of another country about whose jurisdiction should apply. Obviously, that did happen in that the British courts felt they had the authority and jurisdiction to seize assets. The European Commission obviously did not agree and nor did the Spanish courts. Surely the potential still exists for-----

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Is the Deputy saying that in that particular case, there were two separate decisions that conflicted with each other or is he saying it was one decision?

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

There were two separate decisions that conflicted with each other, to the best of my knowledge.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Is the Deputy saying the award was made twice?

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

No, I am not saying that.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

In that case, that is a different thing. What the Deputy is really trying to prevent, that an award will be made-----

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

No. I am not saying the award was made twice.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

That is what the amendment seeks to prevent.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

No, the amendment seeks to prevent two separate attempts to obtain a satisfactory decision through the use of two different forums. Obviously, it cannot-----

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

That is partially correct but the Deputy's amendment talks about "sought or obtained", so he is talking about where it is already got an award.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Yes, okay.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The wording of the legislation specifically applies to where an award has been made by the investor court system, so we are at the stage where it has made an award, which means it has gone through a huge process. It involves things that I think are not likely to happen. It has gone through all of this. The investor court has made the decision and all of the Deputy's fears have come true at this point. We are saying that we are still subordinating that to prevent the constitutional order of the State being compromised.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

That is our desired outcome.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

We are not actually that far away.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The concern we have is that the safeguards do not exist. The word "obtained" relates to a decision where a party has obtained a decision in the investor court and then whether that can be applied or not and if that is challenged, it is challenged in one domestic court and potentially a subsequent one if it is defeated in the first domestic court. That is the kind of situation-----

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The way it will work is the Irish Government is fought in an investor court over, for example, an expropriation, for example, we have taken all the land off some company established here under the provisions of CETA, and the investor court has said we are in the wrong. By the way, the Irish Government does not do that, so this is purely imaginary. It is an unimaginable scenario. We then say we do not agree with the decision of the investor court and are now going to the Irish courts to say that the decision of the investor court compromises the constitutional order of the State. That is, therefore, a massive safeguard.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The concern is that the safeguards are not adequate to ensure that this does happen. I think it is important to ensure that there is a clear legislative provision against forum shopping. That is the purpose of amendment No. 14.

John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 16 to 22, inclusive, and amendment No. 24 are related and may be discussed together. Amendment No. 17 is a physical alternative to amendment No. 16, amendment No. 18 is a physical alternative to amendment No. 17, amendment No. 19 is a physical alternative to amendments Nos. 17 and 18 and amendments Nos. 20 and 21 are physical alternatives to amendments Nos. 17, 18 and 19.

Duncan Smith (Dublin Fingal East, Labour)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 16:

In page 4, to delete lines 24 to 31.

This amendment seeks to modify the proposal that the Minister prepare a detailed estimate and statement on the potential cost exposure of the State arising from the prescription of any agreement under subsection (5) and order of any prescription thereunder shall not have effect until a resolution of both Houses of the Oireachtas has been passed approving the order. It also requires inter-ministerial consultations and consultations with Oireachtas committees in the process. It broadens the political guard-rails and safeguards relating to an award and ensures a minimum time limit for a debate on same in the House so that it could not be guillotined or get through without a debate.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

This concerns the proposed amendment to the principal Act. While that mentions CETA and further agreements, it also potentially opens the door to any future agreement this arbitration Bill would apply to. What that means is that the kind of debate we are having here would be severely constrained regarding what, in terms of legislation, would probably be a resolution before the Houses relating to future trade agreements of this kind that would potentially be subject to the same investor court system. That is notwithstanding any potential changes that might happen in terms of the dynamics and what we might learn about how these new types of investor court systems operate, what kind of awards they are making and, to a lesser extent, the legal frameworks. In five, ten or 15 years' time, if the Oireachtas seeks to examine a new trade agreement that Ireland seeks to enter into, it would have a "Yes" or "No" vote on a resolution to approve it and because it interferes with the arbitration Acts, there would not be any ability to amend and get into legislation. It would simply fall under this legislation. I do not think this is right. It is important to preserve the ability to examine each and every one of those under legislation, as is appropriate, including the ramifications it has.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I will go through the entire grouping.

John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I remind the Deputies that we are dealing with a group of amendments, amendments Nos. 16 to 22, inclusive.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I do not know if members want to go on to-----

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

No.

John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Does the Minister of State want to address all of them individually?

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I will leave it to the Minister of State.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I will go through them all. Amendments Nos. 16 and 17 basically propose deleting or amending the order-making power. Amendment No. 16 effectively proposes to delete the order-making power from the legislation. Deputies have raised concerns about the inclusion of this power in legislation, including in amendments Nos. 5 and 6, which were disallowed.

Amendment No. 17 proposes to effectively amend the order-making power and to add extensive requirements regarding consultation and oversight. I thank the Deputies for the questions raised. Even though I might disagree with them, it is important that we are scrutinising the Bill. They should not get me wrong; this type of back-and-forth is essential for any piece of legislation. It is important to do this but it is also helpful for me to clarify the processes that are in place for the ratification of international agreements after this legislation enters into force.

Where Ireland intends to enter into any new international agreement, including agreements containing investment dispute resolution provisions, an assessment is made as to whether any steps, including legislation, are required in order for Ireland to be in a position to give effect to any international obligations contained in the agreement. Where such steps are identified, they are then taken before ratification proceeds. The process is separate from the constitutional requirement of Dáil approval for international agreements that give rise to a charge on public funds. That is fundamental.

In the context of any international agreements, including investment dispute resolution provisions, orders pursuant to the new section 25A will be made as part of the standard steps required prior to ratification of such agreements. Pursuant to the new section 25A(6), any order made under the new legislation must be laid before both Houses of the Oireachtas and each of those Houses would then have the opportunity to pass a resolution annulling the order. If such a resolution annulling the order were passed by either the Dáil or the Seanad, within 21 days the order would be annulled. By the way, the power of annulment is not a power either House of the Oireachtas regularly uses. I was a Member of the Seanad when it was attempted once.

If the relevant agreement involves a charge on public funds, then a Dáil motion would separately be required before ratification. It has been determined that this will be the case in relation to CETA and the EU agreement with Chile, which are the two agreements that are listed in this Bill. We expect that other similar agreements are also likely to require Dáil motions and thus provide further opportunity for parliamentary scrutiny, including on the floor of the House, or in the relevant committees, or whatever way the Members want that scrutiny. I can confirm that such a Dáil motion would be obtained before any order under the new section 25A. There is a multi-step process.

The Government is of the view that this approach achieves the correct balance between legislative efficiency and parliamentary scrutiny. It does not accept that primary legislation is required for every new international agreement containing investment dispute resolution processes.

Secondary legislation must be consistent with and based on legislation adopted by the Oireachtas. If it is not, it can be overturned by the courts. That has happened. The detailed and prescriptive approach specified in the amendments proposed, however, would make the process for making orders pursuant to this legislation closer to and indeed more onerous than new primary legislation. Therefore, we cannot agree to that.

I will move on to the next amendment. Amendments Nos. 17, 18 and 19 are in this grouping as well. They propose deleting the negative resolution requirement and in some cases inserting a positive resolution requirement. As I said already, the Government, with the help of the Attorney General, has carefully considered the Supreme Court's findings in the Costello case. This legislation sets out the Government's response, including standard provisions.

Pursuant to the new section 25A(6), any order made under the new legislation must be laid before both Houses and each House, as I said already, has an opportunity to pass the resolution. If such resolution is passed, either by the Dáil or the Seanad within 21 days, the order is annulled.

I have already explained the provisions in relation to agreements involving a charge on public funds under the Constitution. We believe that this is the correct way to do this.

The group also includes amendments Nos. 20 and 22. Again, these amendments assign a new constitutional role to the Houses of the Oireachtas in relation to treaty actions, which they do not currently have. As I have already said, orders made under this legislation would be one step required to allow Ireland to ratify CETA and other similar agreements. Introducing the amendments proposed would mean that such an order could be annulled at any time with subsequent consequences for Ireland's ratification of the relevant agreements. The Constitution does not envisage a role for the Houses of the Oireachtas in relation to such treaty actions under international law.

Amendments Nos. 21 and 24 are the end of the grouping. We will consider them but I have already spoken in detail about the procedures. I am happy to reconfirm that all constitutional requirements have to be satisfied. There are no ifs or buts. These are an absolute sine qua nonin relation to all international agreements that are to be entered into by the State following the enactment of this Bill.

I assure Deputies that the Government's assessment of this context is that the Constitution requires any Dáil motion required under Article 29. 5 of the Constitution – the basic law of the State – to be obtained before any order in this legislation under section 25A.

I am also happy to confirm that a relevant international agreement would not be ratified until the 21-day period specified in subsection (6) of the new section 25A has passed. There is no possibility of the State becoming a party to international agreements without meeting the relevant constitutional requirement. Therefore, we believe that amendments No. 21 and 24 are unnecessary and superfluous.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I will just speak to the remaining amendments as I had forgotten that they were grouped. I have spoken to amendment No. 16.

Amendment No. 19 seeks to delete section 25A(6) and replace it with a provision to the effect that every order made by the Minister for foreign affairs under subsection (5) should only have legal effect following approval of that order by a resolution of both Houses. This provision would replace the option for the Oireachtas to scrutinise orders made with an active requirement that such scrutiny would take place. That is the right approach. It is unacceptable that there would not be a proper debate. It is difficult to overstate the importance of ensuring that there is scrutiny. I will come back to that. The onus should be placed on the Government in the legislation to ensure that there is an active seeking of permission from these Houses for entering into such agreements. The provisions as currently worded would give significant power to future Ministers to prescribe agreements.

Amendment No. 21 is in that grouping as well. This is required in order to ensure the effectiveness of the safeguard.

Amendment No. 22 provides a clear provision, which states: "Notwithstanding subsection (6), an order made under subsection (5) shall cease to have effect if resolutions annulling that order are passed by both Houses of the Oireachtas at any time following the making of that order." Subsection (6) has a very short timeline of three weeks for the Oireachtas to object to giving an order. This amendment makes it clear that the Oireachtas can at any time annul the order and remove the applicability of this Act to an international agreement containing an investor court.

The latter amendment is about ensuring the authority of the Oireachtas. Three weeks would be very tight. It is not difficult to imagine a set of circumstances where something sailed under the radar. It is important as well that the onus should be on the Government. To some extent this is about creating an open door for trade agreements to operate on the basis of the investor court system in the future. This is a system that we have huge reservations about. A lot of the assurances being provided are based on the fact that we have good relations with Canada and that trade with it is good, it is a democracy and that we can rely on its institutions and political culture. By and large, we agree with all of that but the new section 25A that will go into the principal Act would also apply to any Government that the EU would seek to directly enter into a trade agreement with, which is a bit of an open door. To some extent, the way that it is worded is asking the Opposition to bolt the door that the Government has left open after the horse has potentially bolted. That is the issue in relation to this, which is why we are bringing forward those amendments. I might make a further point in a moment.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

This is one part of it. There will be a debate in the Oireachtas on the ratification of an international treaty. It cannot be done. The Constitution is supreme. The Government cannot ratify treaties that cause a charge on public funds without getting the Houses of the Oireachtas to support it.

That is a fact. The scrutiny here is fundamental constitutional scrutiny. The Government cannot do this. The Government cannot just willy-nilly go over and sign treaties that would cost the State money if there was a charge on public funds, which certainly includes the ones that we are talking about today, without getting approval under Article 29.5 of the Constitution.

This legislation subordinates an investor court decision to the provisions that we already talked so much about. The Oireachtas then has the role. This is a relatively standard clause. As the Irish phrase says, it is fite fuaite - interwoven - throughout legislation all over the place. It is a standard clause. It is part of a series of steps that will be undertaken. We still have to go through the constitutional fundamentals of all this. We passed this legislation. If the Government wants to ratify CETA then, we still have to have a constitutional motion, and then the Minister would do this. CETA should come into force and we want it to come into force. This legislation is only giving us the means of doing so within the Constitution. We then have to use the means. The means of ratifying an international treaty are laid out in the Constitution. We have to do that. We will be back to the committee and all Members of the Oireachtas.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I wish to get clarification on the Government's position on this. Would it be fair to say that the Government's position is that the provisions of CETA are subservient to Irish courts?

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

No. We enter into a trade agreement. We ratify that trade agreement. We impose obligations on the State and on part of our laws. We do that, but we do that with the consent of the Oireachtas if they cause a charge on public funds. Forget about investor courts, in certain circumstances, the international treaty can be interpreted by the Irish courts as well, and of course, by the European Court of Justice. It is all part of the legal order. The investor court system cannot compromise the constitutional order of the State. That is the fundamental principle that we are putting forward here. In many ways, everything else dances around that. The other important point that I keep making is that there is still a constitutional ratification provision that no government can dance around. The Government has to comply with that. It cannot enter force.

In a system such as ours and the way we do international law, international treaties impose obligations on the State. There are no two ways about that. They are beneficial to us because they allow the freer flow of trade under the relevant agreement. They can bring prosperity to us. The State does this all the time in trade agreements and the European Union is a particular case as well. We subordinate our courts to the European Union. That is a totally separate thing.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The Minister of State said there is no dancing around it. To an extent, that is ultimately what this is about. CETA was designed on the basis of Canadian and EU law without reference to the individual domestic legislation or constitutional order of each of the member states. There is sort of a retrofitting of this to ensure that the logic of it applies and still somehow manages to fit with our own particular arrangements and our own particular Constitution. Our constitutional position is that, ultimately, the Irish courts should be the final arbiter.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

That is not the case under European law. The European Court of Justice is the final arbiter under European law. We voted for that time and time again in referendums. The State and the people of Ireland have got huge benefits from having that legal certainty across the European Union because that allows us then to sell goods and services across the European Union. It is the foundation of our economic success. CETA has obligations on the signatories, members states, the European Union and Canada, for example, to reduce trade tariff rates and other obligations as well. This is a feature in terms of public procurement and other things as well.

Again, on the obligations of the State, concerns were raised querying if this could impact the State's ability to regulate in the way that western democracies normally regulate. We made clear in the legislation that there is no way that those obligations could be imposed on the State to prevent it from regulating in the normal way. That is clear because international agreements impose obligations on states. We sign up to them because it is part of a two-way agreement.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The problem is that CETA does not really anticipate being challenged in domestic courts in individual member states of the EU. Article 8.41 does not touch on national courts of member states. It does not mention that at all - the part that refers to enforcement of awards. Ultimately, it imagines that it is the final arbiter. From the Minister of State's interpretation of it, if there is a conflict then it can be disputed in the Irish High Court, the Belgian equivalent or the Portuguese equivalent, but that is not how it is laid out under CETA. Again, that comes back to the fundamental point that it is not totally convincing to us that it will be possible to upend a decision of an investor court in the Irish courts. In such circumstances, the Irish taxpayer, Belgian taxpayer or the Portuguese taxpayer ends up on the hook.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

We do not think it is going to be commonplace, but if there is a decision made an investor court, it is then enforced or executed, to use the legal term, in Ireland. That is why we are amending the Arbitration Act because that is the legal basis for it in terms of the ultimate execution of it. This whole legislation is about how we enforce the awards of investor courts. We are saying that we will not enforce them. The courts will not enforce them if they compromise the constitutional order of the State. In that sense, we are putting the Irish courts at a hierarchy above the investor court in those circumstances that are set in the legislation in the case of a compromise of the constitutional order of a state or the autonomy of the legal system on the EU side as well. We are supporting an award to the Irish legal system in those scenarios that are set out in the legislation. If there is an award that is not in breach of that, that is enforced then in Ireland under law under the Arbitration Act. That is why we are amending that legislation.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The legislation is unilaterally imposing limited conditions and awards. That is not how CETA sees it.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

However, it is how we see it because the courts said it was not constitutional for us to ratify it. We can only ratify CETA subject to following the Costello case. This is our way of doing it. That is the only way. If we were not prepared to do this, we would have to go to the people and seek a referendum on it. The courts have given us this guidance. We are following it very carefully to allow us and the Oireachtas to ratify the agreement in a constitutional way.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

CETA does not necessarily anticipate that is possible.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

We have taken the advice. We have CETA, the Supreme Court decision and the Attorney General's advice. This legislation has been drafted to ensure compliance with our international obligations, which are very important to Ireland, but also with our Constitution. That is the way this Bill is drafted. It is a unique set of circumstances. The Bill does that very successfully.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

For example, in a set of circumstances where we will assume that the Oireachtas does everything right and passes legislation that is in compliance with the Constitution and in accordance with Irish law, what happens in the circumstances of a hypothetical case that an Irish court decides to set the decision of an investor court aside because it conflicts with the Irish constitutional order and everyone, at the Irish end, is happy with things?

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Then it cannot be enforced in Ireland.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

There does not seem to be anything in CETA that anticipates the set of circumstances I have outlined.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

There is, actually, because it is said in CETA that the execution of the award is governed by our laws. The exact language is, "Execution of the award shall be governed by the laws concerning the execution of judgments or awards in force where the execution is sought." They get a judgment, the investor court system then says to lawyers to execute this, and they say there is a section here now and you might be goosed because the Oireachtas put this in because it was the only way to do it constitutionally. That is then in compliance with CETA because that is what Article 8.41.4 says, "Execution of the award shall be governed by the laws concerning the execution of judgments or awards in force where the execution is sought." Irish law applies to the execution of it and we are saying, under this Bill, that you cannot enforce it if it compromises the constitutional order of the State or the autonomy of the legal order of the European Union.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I am still concerned about the circumstances in which that can happen. That is the execution of the award, so that is in circumstances where a domestic court does not dispute it. An investor court gives an award and an Irish court executes it, but it does not say that it can set it aside, which is a different thing from non-execution of it, I suppose.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

It is hard to see. It is not enforceable, so it does not apply then in Ireland. The courts have determined that it is not enforceable and that is in compliance then with the provisions of the CETA agreement that I have quoted. If it is not enforceable or executable, then it is not an obligation. If you cannot get execution of it, then it does not exist.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I am really not-----

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

If I owe the Deputy money and he goes to court, gets an award and the sheriff comes after me and takes my assets, that is execution. This here is totally different because you are operating on the international legal sphere as well. If the investor court says that the State owes the Deputy money but the State then says, as part of the execution, that this compromises the constitutional order of the State and the courts agree, then it does not exist because CETA says that the "Execution of the award shall be governed by the laws concerning the execution of judgments or awards in force" in Ireland. We cannot do it; it does not arise. It is not like the Deputy and I, as individuals, because then there might be a judgment when I go to get a mortgage and there is a court order and they say, no, we will not lend the money. This is the State, which is in a totally different position. Again, I do not see any of this as realisable. Again, this is all ar eagla na heagla.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Yes.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

It really is. I really believe that it is belt and braces. If the conditions are met that we are putting in to follow the Costello case, then simply it goes into thin air because there is no possible way of execution.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

This all underlines the fact that increasingly international agreements are moving away from these investor court systems - the previous generation or this generation of them. The EU-Australia deal does not look at it. The new NAFTA deal does not have anything to this effect or a much lesser version of it or anything like that. That reflects the fact that, ultimately, there is a desire for these things to be arbitrated and decided at a domestic level, and it is important that Irish courts are in a position to put it aside. I am not confident, when I read that section of CETA, that if the Arbitration (Amendment) Bill and CETA come into conflict and, ultimately, you end up in some other court somewhere else where, on the basis of Article 8.41.4 of CETA, that "Execution of the award shall be governed by the laws concerning the execution of judgments or awards in force", that it deals with setting aside. I do not think that there has been any power created under CETA for a domestic court to set it aside.

On the other amendments, it is important that the active permission is sought, not only for the trade agreement, but for the Arbitration (Amendment) Bill to apply to future trade agreements, whether those are some of the ones that are mentioned by name or some future unanticipated trade deals that could be developed.

John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I think we have teased out both sides of this matter.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 19:

In page 4, to delete lines 32 to 38 and substitute the following: "(6) Every order made by the Minister for Foreign Affairs and Trade under subsection (5) shall only have legal effect following approval of that order by resolution of both Houses of the Oireachtas.".

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 20:

In page 4, lines 35 and 36, to delete "within the next 21 days on which that House sits after the order is laid before it,".

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 21:

In page 4, lines 37 and 38, to delete "but without prejudice to the validity of anything previously done thereunder" and substitute the following: "and no step shall be taken to ratify a relevant international agreement until such 21 days have passed".

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 22:

In page 4, after line 38, to insert the following: "(7) Notwithstanding subsection (6), an order made under subsection (5) shall cease to have effect if resolutions annulling that order are passed by both Houses of the Oireachtas at any time following the making of that order.".

John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Deputy Duncan Smith has informed me that he wishes to withdraw amendments Nos. 28 to 30, inclusive. Amendment No. 28 has been ruled out of order but he wishes to withdraw amendments Nos. 29 and 30. I propose that we suspend and resume later.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 23:

In page 4, after line 38, to insert the following: "(7) All documents relating to awards enforced under this section shall be subject to and available to the public the Freedom of Information Act 2014 and Directive 2003/4/EC on public access to environmental information.".

This is just a new subsection to require documents relating to awards enforced under this section to be subject to and available to the public under freedom of information. If the State is losing large amounts of money in these courts, the public have a right to know.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 24:

In page 4, after line 38, to insert the following: "(7) No order may be made by the Minister for Foreign Affairs and Trade under subsection (5) save to the extent that the obligations of Article 29(5) of the Constitution have been fulfilled in respect of the relevant international agreement before the making of such order.".

John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 25 to 27, inclusive, are related and may be discussed together. Is that agreed? Agreed.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 25:

In page 4, after line 38, to insert the following: "Report on awards enforceable outside the State

5. The Minister for Foreign Affairs and Trade shall, within 6 months of the passing of this Act and on an annual basis thereafter, lay a report before both Houses of the Oireachtas outlining:

(a) the total value of awards made against the State under international agreements which the State is party to in foreign jurisdictions or international forums;

(b) the number of cases brought against the State in foreign jurisdictions or international forums under an investor-state dispute settlement mechanism or an investor court system mechanism; and

(c) the specifics of any such cases brought against the State, in particular the public policy decisions giving rise to such cases."

Amendment No. 25 inserts a new section providing for a report to both Houses of the Oireachtas on the enforcement of investor court awards outside the State. This is partially in the context of our concerns in relation to forum shopping, which is a common occurrence when it comes to investor courts. We have seen in the case of Spain why this can be so dangerous and expose the State to huge liabilities.

Amendment No. 26 inserts a new section providing for a report to both Houses of the Oireachtas on the impact of the State's participation in international agreements containing investor court systems or investor-state dispute settlement mechanisms on the housing market and the ability of the Government to enact policies to reduce the cost of housing in the State. This is important as the Canadian real estate investment trust has a significant presence in the Irish housing market already and would have access to these courts in the instance CETA was ratified.

Amendment No. 27 inserts a new section providing for a report to both Houses of the Oireachtas on the manner in which the operation of this Act has complied with the Constitution and, in particular, shall examine its effect on Articles 15, 34 to 37, inclusive, and 45 of the Constitution. Article 15 provides that the Oireachtas is the supreme law-making power in the State. Articles 34 to 37, inclusive, provide for the proper functioning of the Judiciary, and Article 45 outlines the social directives that the State should take to provide for the functioning of the State. That is the purpose of these amendments.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I will deal with the amendments together. There are already Standing Orders in the Dáil and the Seanad in relation to post-enactment reporting and they have to be complied with. They are general ones. However, these amendments put new and expansive reporting obligations on the Bill and would capture, as we see it, not only international agreements dealt with under this legislation but also awards made against the State under all international agreements where the State is party and, in the language of the amendment, "in foreign jurisdictions or international forums". This may not be intentional but will include, for example, the European Court of Justice and the European Court of Human Rights.

Amendment No. 25 appears to be based on the premise that these types of investor courts will lack transparency and make decisions behind closed doors. In fact, this is not the case and there have been huge reforms brought in that are intended to ensure full transparency in the new investor court system under this legislation. There are existing public bodies at the international level, including the UN Trade and Development Agency, which already compiles statistics on investment disputes.

In relation to amendment No. 26 on housing, as I have already said, the CETA agreement includes provision preserving the right to regulate for public policy purposes.

It also provides that investment protection provisions shall not be interpreted as a commitment from governments that their legal frameworks will remain unchanged. The agreement clarifies that the fact that a measure may negatively affect an investment or affect an expectation of profit is not sufficient to say the measure is inconsistent with the agreement. CETA also clearly defines indirect expropriation, specifying that non-discriminatory measures to attain legitimate policy goals regarding labour, health or the environment are not deemed to be indirect expropriation unless they are manifestly disproportionate.

Amendment No. 27 would create an unprecedented reporting review requirement, which appears to be premised on doubts regarding the constitutionality of the legislation. Every law has to be compatible with the Constitution. The idea that we must report whether legislation is so compatible really goes against the principle that every law must comply with the Constitution. The Bill has been drafted to ensure compliance with the Constitution and the relevant obligations Ireland will assume upon ratification of the relevant international agreement. The Constitution specifies mechanisms for assessing the constitutionality of legislation. The President has a well-known role in that, as do as the Houses of the Oireachtas and, of course, the courts. The requirements specified in the amendment would give new powers to the Minister for foreign affairs that really are not envisaged under the Constitution.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

It comes back to my primary point that it is not sufficiently clear in what circumstances such decisions may be set aside. I will press the amendment.

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 26:

In page 4, after line 38, to insert the following: "Report on effect of legislation on access to housing

5. The Minister for Foreign Affairs and Trade shall, within 1 year of the passing of this Act and on an annual basis thereafter and in consultation with the Minister for Housing, Local Government and Heritage, lay a report before both Houses of the Oireachtas outlining the impact of the State’s participation in international agreements containing investor court systems or investor-state dispute settlement mechanisms on the housing market and the ability of the Government to enact policies to reduce the cost of housing in the State.".

Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 27:

In page 4, after line 38, to insert the following: "Report on constitutional compliance

5. The Minister for Foreign Affairs and Trade shall, within 1 year of the passing of this Act and on an annual basis thereafter, lay a report before both Houses of the Oireachtas examining the manner in which the operation of this Act has complied with the Constitution and in particular shall examine its effect on the proper operation of the following—

(a) Article 15 of the Constitution,

(b) Articles 34 - 37 of the Constitution, and

(c) Article 45 of the Constitution.".

John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Amendment No. 28 in the name of Deputy Duncan Smith has been ruled out of order because it is in conflict with the principle of the Bill.

John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Deputy Smith has informed me that he is withdrawing amendments Nos. 29 and 30.

John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

On behalf of the committee, I thank the Minister of State and his officials for their attendance. I also thank my colleagues, who debated the issues with great attention to detail. I appreciate that the broadcast staff facilitated the broadcast of the meeting late into the evening. I also thank the clerk and the officials on this side of the desk.

That completes the select committee's consideration of Committee Stage of the Arbitration (Amendment) Bill 2025. I understand the Minister of State will now take the Bill to the Seanad.

Thomas Byrne (Meath East, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

We will have Report Stage in the Dáil next. I take this opportunity to thank my officials and the Oireachtas officials for staying late to finish Committee Stage. We stay late every Wednesday, so we will not get any thanks for it.

John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I thank the Minister of State.