Thursday, 3 June 2021
Department of Enterprise, Trade and Employment
73. To ask the Minister for Enterprise, Trade and Employment if his Department will halt any attempt to progress CETA ratification in view of the outstanding constitutional legal case, the principle of limiting liability in climate change matters which has been included in the Climate Action and Low Carbon Development (Amendment) Bill 2021 and the existing protection from an investor court not open to the public to hold investors accountable; and if he will make a statement on the matter. [30032/21]
As the Deputy will be aware, the Joint Oireachtas Committee on EU Affairs has been considering CETA over the last several weeks with various interests setting out their perspectives and debating the terms of the Agreement with Oireachtas Members. I myself participated last week in a good engagement with the Committee.
I have previously set out the case for ratification by Ireland based on how the EU's suite of Free Trade and Investment Protection Agreements provide better market access for Irish exporters and investors as as well as increasing the attractiveness of the EU - and Ireland - for mobile Foreign Direct Investment.
In relation to the matters that the Deputy has identified as a basis for halting our ratifications process, I am happy to confirm that both parties to the High Court case regarding whether a referendum is required prior to ratifying CETA - which the Government is opposing - had sought an early hearing and the President of the High Court has already assigned a Judge to the case and the Parties are working towards a Hearing in July. In that regard, I will not be seeking to have a Motion for Ratification tabled before the House before that case has been determined by the High Court.
On the issue of "the principle of limiting liability in climate change matters which has been included in the Climate Action and Low Carbon Development (Amendment) Bill 2021", I see no reason why this would impinge on our ratification timetable. I have been clear in response to previous Parliamentary Questions, and in Committee, that CETA does not prevent national Governments across the EU - or Canada - from legislating in the area of environmental protection. Moreover CETA commits the Parties to the Agreement to the commitments under the Paris Agreement. Thus, this Bill demonstrates that the provisions of CETA do not prevent the Irish Government bringing forward legislation on Climate, the Environment, or indeed, in other policy areas and has no bearing on whether CETA should or should not be ratified at this time.
In relation to CETA's Investor Court System (ICS), it is important to note that all international trade agreements have dispute resolution arrangements. Moreover, where such agreements cover investment rules and protections, then there must be a dispute resolution mechanism that covers investments. The ICS in CETA reflects reforms promoted by the EU which address the concerns that had previously been raised by NGOs and others regarding the old Investor-State-Dispute-Settlement mechanism - or ISDS – on issues such as transparency, legitimacy and public interest.
However, it is important to remember that a Canadian firm can seek to sue the government for alleged unfair treatment or discrimination in our Courts whether CETA exists or not. CETA simply provides an arbitration alternative - the ICS. Importantly, that alternative, unlike a challenge in the Courts, cannot find any act by Government to be ultra vires or unconstitutional - it is only concerned with redress for proven harm by discriminatory actions or unfair or inequitable treatment as set out in CETA.
The ICS provides a single, consistent mechanism where investors, be they Canadian or European, can seek redress. However, under CETA the right of Member States (and Canada) to regulate for public policies (e.g. in health, environment, security) is fully preserved, and it is made clear that the Agreement does not imply an expectation that public policies will remain unchanged. Further, an investor’s loss of profits will not be sufficient grounds for making a claim against a Government. Any claim must be based on discriminatory and unfair treatment. Investors will retain the option of utilising either national courts or the ICS but are precluded from using both, to avoid forum shopping. All documentation in a dispute will be publicly available including decisions and third parties such as NGOs will be able to participate.
Moreover, CETA also provides a forum for civil society advisory groups to submit opinions or make recommendations in relation to matters related to the Trade and Environment Chapter of CETA. CETA further encourages inter-government cooperation on environmental related issues and cooperation in international forums. In this regard, the CETA civil society forum has met on three occasions to date, most recently on 8/9 December 2020 where parties discussed the potential for future collaboration between Civil Society Organisations and the EU and Canada on issues such as Gender equality in access to trade opportunities, SMEs and Climate Action and the Paris Agreement.
In summary, what ICS does is provide a reformed alternative for investors where they may be in dispute with a State, alleging discrimination or unfair treatment. On the other hand, any investor can always, to use the Deputy's term, be held "accountable" before different domestic or EU fora, as all investors in Ireland are subject to the same national and EU legal order and obligations, notwithstanding CETA.