Arbitration (Amendment) Bill 2025: Second Stage
Seanad Éireann — 2026-05-06
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Alice-Mary Higgins (IND), National University of Ireland

I first brought discussion on CETA and investor courts to the Seanad exactly a decade ago. It was my very first Private Member's business as a new Senator. A majority of Senators at that time had the courage to support me and the motion was successful. The concern we were raising in that motion was the fact that the trade component and these investor courts were separate and should not be considered together. We noted that a European Court of Justice ruling on the Singapore deal was pending and that Ireland should not be rushing ahead before it.
That Singapore ruling did happen and we were correct because that ruling decided and said - and this is why it is really important, we are not just saying we are getting away with the trade - the trade and investor court components are separate. Trade is an EU competency. The European Commission has been mandated by the different countries to negotiate and lead on it. That is why it can be very frustrating moving in these areas sometimes but the point is that is what we have agreed, and they move forward. The trade component can move forward but the investor court element, which is an issue that directly affects national sovereignty, has national implications and subsidiary implications that go beyond anything collectively for the European Union, must be decided and determined at national level. It is not simply that we did A and do not want to do B; it is that A and B are different. With A being trade, trade is already happening. It is already under way. Not only that, but when we look to the Government's own document on the future opportunities for trade with Canada, Beyond Barriers: Deepening Canada–Ireland Trade and Investment, we hear those are in areas where trade is already allowed and happening. There is no constraint in relation to any of those ambitions for increased trade, be with Canada, Chile or anywhere else but the investor court component is separate and is deeply consequential.
We need to be clear. The line was said in regard to protections. There is already protection. The Ministers and the Canadian ambassador have said it before: there is no example of Canadian companies failing to get proper justice in our Irish courts system. Are we saying that we do not trust Canadian courts after all the wonderful things we hear about? These are established. What those courts do is balance a whole set of rights. They look at the claim an investor is making and they balance it against environmental, human rights and case law and against the wider picture. They come up with a ruling that is balanced by all those aspects of the law. What arbitration courts do is solely consider whether a corporation can be afforded compensation, which includes future unearned profits that it might have made if it feels it has been unfairly treated in relation to a policy or if a policy unfairly impacts on it.
The implications of that have been seen globally, right across, with investor-state dispute mechanisms. Those same grounds are there, namely, fair and equitable. It is the same language that is in those investor dispute mechanisms that has led to the list of egregious rulings, with hundreds of millions and billions being made against states when corporations looked for compensation. In regard to unfair and unequal treatment, it sounds like we would not do that. Let us be clear by the kinds of things that are covered by that. They are covered by the provision "When applying the ... fair and equitable treatment obligation" - this is from the text of CETA - "the Tribunal may take into account whether a Party made a specific representation to an investor to induce a covered investment, that created a legitimate expectation". It is not simply a matter of bringing in a rule that will apply to everybody and that we will be fine. I refer to us bringing in a rule where such a company gets to say we asked it to invest and again, the beyond barriers report is explicitly clear that what Canadian companies like is getting encouraged to invest. I have a list from a response to a parliamentary question of about 30 Canadian companies that have been encouraged to invest. The simple fact of that would give them a standing - which no Irish company would have, by the way - to say they want compensation on a rule.
What are the areas that are affected? The litany of cases we have seen in the past are in the environmental and public health areas and there is huge vulnerability in other unregulated and under-regulated areas, like home care and housing. These are areas where in many cases, the Government is failing people now and it wants to tie the hands of future Governments to say that they will not be able to respond and deliver for the public and the next generation if they wish to in these areas because when they do so, it will come with a huge threat. Yes, of course there is a right to regulate but what if that right to regulate comes with a massive compensation claim attached to it? Again, I quote Deputy Micheál Martin: "The smoking ban would never have been introduced had we been afraid of the threat of big tobacco coming after us legally." That was him giving out about the smoky coal ban where again, Varadkar was stalling, because of the Energy Charter Treaty, with regard to enacting it. The fact is, we would not have been exposed to big tobacco at that time. I wonder would he have brought the smoking ban in if big tobacco had been able to sue, as it has sued countries right across the world and fought tooth and nail against even the inclusion of warnings on cigarette packets under investor-state dispute settlement, ISDS.
I have some facts as well. This is not simply about the new investor court system which, by the way, is essentially the same. It is not a secret, although either party can ask that the reasons for judgment might not be revealed. It has the same operating mechanisms and, of course, companies do not have to go with the investor court system, ICS. They can choose to go under the old investment rules, or the ISDS rules. The legislation from the Minister does not say this is only going to be for the investor court systems; it could be for any dispute mechanisms that might be attached. That is what is there in subsection (5). We are wide open here to something that will massively compromise our ability to properly respond, and I should just say there is a dishonesty in the implication of, "Do not worry, we will not enforce it because of what the Constitution says". The point is, the Constitution says we have to abide by European law. By the way, arbitration bodies have been clear. They do not regard themselves as bound by European or international law. Mr. Justice Charleton was very clear that really, the Arbitration Act is a contradiction of CETA, so you would need a special protocol to the treaty. You would actually need the CETA treaty to state it recognises that sometimes Ireland will not implement the rulings. Otherwise, it is a pretend. Not only that but even if Ireland did not enforce the arbitration rulings, there are multiple other countries that can.
Again, it is very clear in the language that the ruling can be taken under the rules of whichever country it is filed in. For example, Spain decided not to pay in certain instances. They took a case against them in the UK and the UK said it was okay to seize Spanish assets in the UK. There are multiple examples where arbitration companies choose to file that the money they are owed by a state can be seized in another jurisdiction where that state has assets. It would not even work in relation to that, and we think of Ireland and our diplomatic assets we are so proud of right across the world.
Fundamentally, this is reckless. It is recklessness with the future. It is not balancing human rights against money; it is reckless financially. Senators feel they got a lot of emails about this issue. There is no monopoly on caring about issues, as every party and public representative cares about them. However, when they get emails in the future about any issue, what Senators do not want is to go back to those people who care about public health and who are writing to them about their concerns on public health, housing, the environment and any other issue and say, "Unfortunately, we have legal concerns that make it hard for us to do the right thing the public wants us to do". In regard to the things the public wants them to do in the future, Senators' hands will be tied by a completely unnecessary and entirely ridiculous decision to create hostages to fortune. Why are we doing this? I honestly think a nice photograph is not worth it if that is the goal, and if the Government wants its hands to be tied so it can respond more directly to corporate pressure, that is an even bigger problem.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-05-06/debate/main
Retrieved: 2026-08-14T04:54:54+00:00
Sitting date: 2026-05-06