Arbitration (Amendment) Bill 2025: Committee Stage
Seanad Éireann — 2026-05-20
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Frances Black (IND), Industrial and Commercial Panel

I want to make a few general points relevant to this section and the purpose of this Bill. I fully agree with the comments of Senators McDowell, Stephenson and Harmon. The role of the Irish courts is being shamefully diluted through this legislation, and I honestly have not heard one single good reason for that. Throughout this entire debate, the Opposition, civil society organisations and expert networks like the Irish Coalition for Business and Human Rights have raised the very chilling effect that ISDS, ICS and similar investor court systems have on our capacity as parliamentarians to legislate in the public interest. This is not an imagined threat but is already happening in many jurisdictions around the world, be that in public health, housing, climate or other areas. In response, the Government repeatedly cites the following section of the joint interpretative instrument on CETA:
CETA preserves the ability of the European Union and its Member States and Canada to adopt and apply their own laws and regulations that regulate economic activity in the public interest, to achieve legitimate public policy objectives such as the protection and promotion of public health, social services, public education, safety, the environment, public morals, social or consumer protection, privacy and data protection and the promotion and protection of cultural diversity.
There are two problems with this answer. First, the answer relates entirely to Canada. The text the Minister of State cites is from CETA, but the legislation before us goes much further. First, it also applies to a trade agreement with Chile and, second and more concerningly, it will empower the Government to agree to investor courts for any future trade agreement with any country in the world by simple ministerial order. With no primary legislation and no substantial debate in these Houses, it is absolutely misleading and, frankly, dishonest for the Government to cite this Canada-specific text as a supposed safeguard in the context of legislation that applies anywhere in the world.
Of more importance is the question of who will actually read and interpret this supposed safeguard text. Even if you accept the Government's argument, which I absolutely do not, that this paragraph is wonderful and sufficient to protect the public interest, it misses the key point: no matter how good the text is, it will ultimately not be up to judges in an Irish court to interpret it. It will be read by a non-transparent corporate court. You can insert the nicest language in the world into CETA or any other trade deal, but what matters is who will actually read and uphold it. The reason we are fighting to insert the High Court back into this process is that we can be reasonably confident, based on years of actual case law and transparent public judgments, as to how our courts will interpret the public interest, but this is simply and categorically not true for private investor courts. We do not know how they see it. This question of interpretation has been completely ignored by the Government in its answers to date.
The Government repeatedly claimed that the ICS was a totally different mechanism than the pre-existing and much-criticised ISDS system. I categorically reject this false distinction. It reminds me of the promises made and alleged safeguards proposed when the ICS was initially brought in many years before the court cases started arising and public budgets started being hit. The ICS regime ultimately maintains many of the same procedural rules as ISDS, including the use of International Centre for Settlement of Investment Disputes, ICSID, and UN Commission on International Trade Law, UNCITRAL, arbitration rules.
It relies on the existing enforcement regime for ISDS awards, including the ICSID and New York conventions. This means, in effect, that investors using ICS can choose to enforce an award in any of over 170 contracting states or to use ICSID enforcement rules in 158 member countries. These states are required to enforce judgments within their territories as if they are the final judgments of their own national courts.
Much has been said about review mechanisms. A review mechanism in the Irish courts only works if the investor chooses to enforce in Ireland alone, which, realistically, no claimant would do if it is expected that the Irish system, considering the public interest or other policy goals, would be hostile to an award that could be achieved elsewhere. ISDS awards can be enforced almost anywhere. There would be no obligation to consider Irish laws in the context of an award enforced outside of Ireland. There is no requirement for investors to attempt to have their awards enforced in Ireland.
Similarly, there have been numerous instances where a state has refused to pay an award but where the investor has successfully enforced the award through the threat of extraterritorial enforcement. This has included the seizure of assets of respondent states outside respondent states' borders. Investors have sought to and been successful in enforcing claims in countries other than the respondent state and sought compensation through the seizure of the assets of a respondent state in a third state. This has included the seizing of aircraft in Tanzania, state cultural and language institutes in Spain and bank accounts. Recently, a court in the Netherlands allowed the enforcement of an award against Spain in respect of an ECT claim by Eurus Energy in which the investor seized a property in Utrecht valued at around €10 million that will be sold through public auction if Spain does not pay the award. This is the kind of activity that is happening under existing systems.
Ultimately, the Government is insisting that this is a new and fundamentally different system from those that have gone before and from the energy charter treaty which we are supposedly trying to leave and under which cases are allegedly being launched against Ireland. Those with decades of experience of these kinds of international corporate trade disputes have set out in great detail why they do not accept this distinction. In all likelihood, if these amendments are rejected by the Government, we will need to wait another ten or 20 years to see what happens, watching the cases mount up and, perhaps, watching another round of rebranding of these courts after the damage has been done. What I said about the energy charter treaty is not abstract; it is already happening.
This month, Lansdowne Oil and Gas, a UK-based investor in an Irish offshore oil and gas field, and its Irish subsidiary lodged an ECT claim against Ireland. The case ultimately relates to a refusal by the Department of the environment to grant this company a licence to drill at the Barryroe oil and gas field in the north Celtic Sea. At a time when we need to be doing everything possible to decarbonise our economy and our society and get away from fossil fuels, a private company is seeking to force us to do the opposite or to compensate it handsomely. The claim may amount to US$100 million. Incredibly, Lansdowne claims that Ireland leaving the ECT is immaterial because of a 20-year sunset clause. Even if we leave, we are still on the hook for two decades. That is the kind of system we are operating in, even when we choose to leave it.
There are also at least three other notices of intention disputes, effectively threats, from other companies under the ECT. When the ECT was agreed, the climate and corporate accountability organisation which raised this prospect was dismissed as engaging in scaremongering. The same argument is being made today. We are walking into a scenario where some of the most powerful and ruthless private companies in the world will be able to seek damages in respect of their potential profits when we try to legislate in the obvious public interest. If the ECT is wrong for Ireland, the investor court system devised here is also wrong, and I fully oppose it.
Amendment No. 24 makes specific reference to the opinions and findings of the ICJ. I am particularly interested in this in light of my years of work on the occupied territories Bill and my ongoing fight to force the Government to comply with the findings of the ICJ. Incredibly, we are not there yet. In 2003, the ICJ delivered a landmark advisory opinion on the legal consequences of the construction of an apartheid wall in the occupied Palestinian territory. It set out clear obligations for all UN member states that have been shamefully ignored and largely forgotten in the 20 years since. In 2024, the ICJ tried again in this regard at the request of the UN General Assembly. It looked at the situation in Palestine and found unequivocally that not only is the occupation illegal and not only are the settlements built on stolen Palestinian land legal but that all countries, including Ireland, are required not to provide any economic trade to support them. As of this morning there are two countries, Spain and Slovenia, that are only even partly complying with the international law obligations set out by the ICJ. That is absolutely shameful. The Irish Government continues to make promises and delays legislation by adopting, in the spirit of St. Augustine, a "make me chaste but not yet" approach.
In the meantime, by contrast to that terrible delay, we see this legislation being rushed through the Houses at breakneck pace in time for the visit of the Prime Minister of Canada. There is no doubt that this legislation will make it harder for Ireland to take progressive measures in the public interest and in compliance with international law, including forcing multinational companies, some of them no doubt Canadian, that are trading with and supporting illegal settlements, to stop doing so. If we finally deliver on our obligations and stop those companies profiting from a brutal and oppressive occupation, they will be able to head to an investor court and seek compensation. How is this something that we are even considering? The amendment seeks to protect against that prospect, and the Government should accept it.
Amendments Nos. 29 and 30 deal with climate. I want to speak briefly in support of them. Across Europe and here in Ireland, we are witnessing a dangerous and rapid row-back on climate commitments. The essential driving force behind this is a short-sighted focus on so-called competitiveness above all other social and policy objectives, including human rights, development and climate. At EU level, a long list of so-called omnibus proposals is being used to shred protections for citizens across a range of areas. The row-back is misleading and is presented as mere simplification to make life easier for most businesses, which, no doubt, the vast majority of us would support. In reality, however, it is an effort by large powerful corporate actors to seize on the current global instability to undo years of work and reduce hard-won standards. This is most evident in climate protection, nature restoration, protection of habitats, water quality and even biodiversity. The Irish Government should reject this race to the bottom and accept the amendments. Our trade policy should be conducted in a manner that respects the standards of the Paris Agreement. That is the simple principle we would like to see inserted into the legislation.

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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