Arbitration (Amendment) Bill 2025: Committee Stage
Seanad Éireann — 2026-05-20
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Patricia Stephenson (SD), Labour Panel

I thank the Leas-Chathaoirleach. That is much appreciated.
Senator McDowell touched on so many important points. I was struck by his analogy about the noose and the platform we are standing on, and the lever that any company can choose to pull should they want to take a case against Ireland. It is incredibly evocative and very much sums up the precipice on which we are sitting. He also asked the questions of why now, why we are rushing and what is the motivation behind this.
As the Minister of State acknowledged on Committee Stage in the Dáil, CETA is already largely in effect - 99% of the trade elements of CETA are already in effect - with an increase from €3.2 billion worth of trade in 2016 to €10 billion worth of trade in 2023. That does lead us to wonder why we are rushing into something that is going to have such a fundamental negative impact on Ireland and Irish sovereignty when it comes to public policy decision-making. That is what this will endeavour to do.
This Bill is not about improving trade for Irish companies because, as has been said, the trade is there and the trade provisions are already active. What this Bill is doing is totally unnecessarily exposing us to the risk of being sued by foreign investors for actions that are perceived as negatively impacting their investments. That will have an absolutely chilling regulatory impact on public policy and decision-making. We have seen that before. Human rights groups and academics have already talked at length about how investor courts have a regulatory chilling impact.
It is like a through-the-looking-glass moment because we are having this debate at the same time as the Government just announced Ireland's withdrawal from the energy charter treaty to avoid risks of arbitration. We have withdrawn from the ECT because of risks of arbitration - or we are in the process of withdrawal - and at the same time we are introducing a new mechanism which will have the same impact. This is actively attempting to ratify a new agreement which is going to impose additional challenges to our sovereignty. Under the ECT we saw companies sue EU member states for millions when they tried to move away from fossil fuels, one example being Uniper, a German energy company that utilised the energy charter treaty to challenge the Netherlands 2030 coal phase-out, claiming damages for stranded assets. That claim was worth over €2 billion. It is nonsensical to do this at the same time as we are having this discussion. We are having this discussion while the Government is withdrawing from the ECT.
Ireland is massively exposed by the arbitration clauses because of high levels of FDI in our economy, which we have ironically been able to attract without having these arbitration clauses. Companies have come and invested in Ireland without investor court systems and arbitration clauses. We have this favourable environment already so why would we be pursuing risks to our own public policy?
ICS courts are effectively a repackaging of ISDS. I know the Minister of State might say the opposite, but that is what they are. It is just a reframing of the ISDS system, which has been strongly condemned. CETA and the associated joint interpretive documents provide no meaningful concrete safeguards about how countries like Ireland can push back against companies. The fundamental issue is that the fundamental priority of ICS arbitrations is compensation claims. They are not looking at the balancing of different pieces of legislation in the way a national court would. When our High Court is looking at cases, it takes the wider legislative framing and balances that with public interest issues. However, according to this Bill, the High Court is only going to be looking at interests relating to the Constitution, which is actually incredibly limited. We will not see the different aspects of legislation being looked at in the ICS arbitration courts.
We have seen a marked EU-wide shift towards a deregulatory agenda under the guise of competition. This is a huge part of that. Again, when we ask why are we pushing this deregulation agenda through under the guise of competition, I always wonder who we are competing with. Who are we trying to compete against? Who do we hope to compete against by lowering our human rights standards or our environmental standards? I have a suspicion that it is China. That is quite a scary concept because then we are trying to lower our operational and procedural standards to compete with China - a country that has vast human rights violations in its supply chains. It is a scary thought that we are on a race to the bottom on human rights and environmental regulations.
Ironically as well, we often hear from this Government, and from the Minister of State, that we need to safeguard the triple lock because it is undermining our sovereignty. That is one argument that is made around sovereignty in the UN Security Council, yet at the same time we are handing over our policy-making sovereignty to investor courts. We are allowing companies to be able-----

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-05-20/debate/main
Retrieved: 2026-08-14T04:54:58+00:00
Sitting date: 2026-05-20