Paul Murphy (Dublin South West, Solidarity)
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36. To ask the Minister for Jobs, Enterprise and Innovation her views on the investor courts system contained in the CETA agreement between the EU and Canada with regard to the advantageous position it provides to investors; and if she will make a statement on the matter. [49589/17]

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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In late 2015, the European Commission proposed a new approach to investment protection based on an international Investment Court System (ICS), to replace the historic Investor State Dispute Settlement (ISDS) system. The ISDS system has been the cause of controversy in our recent Trade negotiations. I believe that the Commission has rightly addressed the concerns raised.  Their proposal is for an independent investment system, consisting of a permanent tribunal and an appeal tribunal competent to review decisions of the tribunal. Dispute settlement proceedings will be conducted in a transparent and impartial manner.  Provisions for the application of such a system have been included in more recent draft Free Trade Agreements (FTAs).

ICS goes a long way to meet the concerns on transparency, legitimacy and public interests. The ICS system is composed of a first instance tribunal and an appeal mechanism based on clearly defined rules and operating on similar principles to the WTO Appellate Body, with qualified judges and transparent proceedings. The ability of investors to take a case before the Tribunal is precisely defined and limited to cases such as targeted discrimination on the base of gender, race or religion, nationality, expropriation without compensation, or denial of justice. Forum–shopping (i.e. presenting a legal case to be heard in the court thought most likely to provide a favourable judgment) will not be possible. Claims deemed to be frivolous will be dismissed quickly, and multiple and parallel proceedings will be avoided.

Also, clear distinction between international law and domestic law will be maintained.  Further, domestic law/governmental right to regulate will maintain precedence.

The ICS also includes additional improvements on access to the new system by small and medium sized companies - SMEs - allowing them to enjoy privileged treatment in comparison with large multinational companies.

The implications of the ICS for Ireland are positive as they bring greater clarity to Irish business, especially SMEs, on the modalities of an open and transparent dispute resolution system as well as confirming that a State can never be forced to change legislation, only to pay fair compensation in cases where the investor is deemed to have been treated unfairly.

The aim of the European Commission is to establish a multilateral court, modelled on arbitrator panels currently operating under the WTO, and other Investment Tribunals.  It will build on the EU's approach on its bilateral FTAs and be a major departure from the system of investor-to-State dispute settlement (ISDS) based on ad hoc commercial arbitration.  The recently concluded EU-Canada trade agreement - CETA - and the EU-Vietnam trade agreement both contain a reference to the establishment of a permanent multilateral investment court. Work continues at EU level on this matter.