Arbitration (Amendment) Bill 2025: Committee Stage
Seanad Éireann — 2026-05-20
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Alice-Mary Higgins (IND), National University of Ireland

Some of my colleagues jumped ahead to discuss specific amendments. I will be coming back later to these specific amendments, including amendments Nos. 29 and 30, which relate to the Paris Agreement.
I want to pick up on some of the core points. I will be very happy to tease out some of the specific issues with the Minister of State as we come to them. I need to highlight two core points. First, this is financially and politically reckless. It is reckless in every sense. The consequences are unknown but what we do know is that there will be and can be very serious consequences.
The Minister used this line on Committee Stage in the Dáil. It is the idea that there is not the remotest possibility that we would be seeing these cases. Cases happen all the time. These structures have been in place for a long time and they get used because they deliver very strong effects for companies - I am going to come back to that - not just financially but also in an ability to influence and shape and change policy. There have been findings of hundreds of millions and of billions against states right across the world. There is a litany of them. It is, in fact, preposterous to suggest that these would not be used. I find that to be worrying. The fact that was being said speaks to a core problem.
Through one of my colleagues in the Dáil, I tabled some parliamentary questions about where the risk analysis had been. There has not been a risk analysis in relation to this across multiple Departments, which will be immensely affected. When Brexit was coming, we were teasing out what it will it mean for the mushroom industry and what it will mean in this area and that area, yet we have this hugely consequential decision where the risk is not being assessed and the Minister is saying, against any evidence of any expert anywhere, that he does not believe there is any possibility that we will be seeing cases. There is key exposure in the areas of housing and care and home care, as well as in public health where there is exposure and a litany of cases. Even when we look to the areas of climate, environment and energy, there is a litany of cases. If we look to the area of mining, there are huge industries related to Canada and others and, indeed, Chile where there is a litany of cases and a litany of companies that have proven themselves to be extremely litigious, including companies operating in Ireland, for example, such as Canadian companies that have a record of taking cases.
The recklessness is also in the context that this does not need to be done. When the Minister described what would happen if we do not ratify, and he has gone into this in some detail on Second Stage, let us be clear; what he is describing is what would happen if we pushed a ratification vote and decided to force a ratification vote on the Dáil and that did not pass. That is the scenario. However, what the Minister has also admitted is that there is no timeline or deadline and there is no requirement for a ratification vote. The consequences he has described are, therefore, entirely voluntarily sought-out risk that the Government is seeking to take. Yes, there are risks in terms of the fact that I do not believe this will stand up constitutionally. Where does that leave us in a bind then? Will we say that, actually, our constitutional courts found that this does not stand up and that the Arbitration Act does not stand up but we have already have ratified a document that relates to courts that do not effectively recognise the supremacy of our Supreme Court? We will be in a situation then, as Senator McDowell has described, where we do not have an ability to leave.
I want to place this recklessness in the context of the point, and I do not really think it was appropriate, where I saw the Minister rolling his eyes when sovereignty was mentioned. This fundamentally does relate to sovereignty and on two levels, that is, the sovereignty of our courts and sovereignty in respect of the ability to serve the Irish public and deliver legislation that reflects their wishes and their mandate. In respect of the courts, the Supreme Court found there was an issue with sovereignty. That was its finding. This is not us saying it. That is what it told us. As for what has been proposed, again, it is not even proposed because what was said was that something may be able to address it because, bear in mind, it would not be appropriate for the Minister to come in here and say that the Supreme Court told us to do this. No, it pointed to a possible measure that could or may ameliorate this issue. It is pretend. It is literally a measure, as was described, which is kind of simply saying, in a bizarre way, that we will say it is constitutional. I have been here through ten years of legislation; all legislation is meant to be constitutional. We will say that we will only do the thing that is constitutional in a Bill, which is bizarre, frankly, in draftsmanship.
Also, that does not have meaningful effect. Let us go back to the sovereignty question when it comes to the courts. What happened in the Singapore case was that the European court was asked who gets to decide in relation to trade and investment courts. What it said was that the European Commission has been given authority in relation to trade negotiations with the various provisions and public policy exceptions and that it goes to nation states to hold the responsibility in terms of whether or not they want to sign up to investor courts. They decide whether or not to sign up to investor courts. That is a separate decision that they make, which, by the way, they do not have to make because of provisional application. The trade bit goes ahead but they do not have to make a decision and there is no timeline or deadline. I should point out that there have been certain trade agreements in which countries were 20 years or longer in provisional application and then exited without ever fully ratifying. However, they choose to ratify. At that point, they surrender their sovereignty. They are trying to ask whether a state wants to surrender the sovereignty whereby instead of an issue being decided by its court system, precedence will now be given to a decision made by an outside arbitration tribunal, which is not in Canada or the EU and it does not consider itself, by the way, bound by any of these laws, be it the International Court of Justice, ICJ, or European courts or anything else. They are separate. They are asking whether states want to surrender sovereignty in relation to judicial decision-making to this other body. What the fix is supposed to say is that, yes, we will choose to surrender our sovereignty but we will ignore what they say if it does not suit the Constitution. It is literally that analogy. We are being asked to voluntarily surrender something we currently own, which is control of the courts and how issues are decided and the confidence. By the way, the Canadian ambassador himself said there has been no instance where a Canadian company has said it is not getting proper treatment in our courts and all the rest. However, that does not mean they are going to choose our courts when they have an arbitration body, which is not required to perform any of the balancing functions in terms of public interest or anything else that our courts are required to do. We are surrendering a situation whereby when there is a dispute, it is decided by our national court, which has a balancing function that balances public interest and European law and, one would hope, international law and all the rest when making a decision. We are saying that instead of that happening here, we are going to allow it to happen there, in an investor court system, although not necessarily, of course, the new investor court system. It could be under the old ICSID rules. It could under the New York rules. We do not know what form of arbitration tribunal will be attached to any of the future deals we will be signed up to, and we know there is great flexibility for corporations in choosing exactly how they would like to see a case tried, even under CETA.
That is what we are being asked to do; surrender that sovereignty from the courts and then have an ameliorating thing where we will try to make it not hurt by saying it will not apply in these constitutional issues. As has been outlined directly, however, any European court is going to say that we already said we wanted to give up the sovereignty and that we made that decision, and why are we now saying we want to hold a little bit of it back around the application?
We will be in that weak position.
In terms of the extraterritorial aspect and the seizure of assets, they do not even have to rely on Europe. The UK courts have ordered seizures of property belonging to Spain. The Instituto Cervantes headquarters in the UK was seized. I have multiple examples; I cannot even list how many. The state-owned air traffic control company of Spain was also seized. This is part of the recklessness. We are very proud of our diplomatic structures and our wonderful embassies across the world, from the Villa Spada right over to the US. They are now in the firing line, factually. Any asset overseas can be seized if the national or local court in that jurisdiction declares it, and it has been done in multiple instances in relation to Spain, for example. This is the recklessness. That is one bit of the sovereignty.
The other bit of the sovereignty is in relation to our lawmaking. The quote the Minister of State has used, and I am sure will use again, is that “the mere fact” that the bottom line or profits are affected is not in itself an issue and that we have the right to legislate. Yes, we retain the right to legislate and "the mere fact" that profits are affected, and I know it is emphasised, is only under the CETA agreement. We do not know if any of this language will be in any future agreements that come through. The point is “the mere fact”. Of course, it is not simply “Our profits are affected, give us money.” It is that our profits are expected, are seen as reasonable expectations, and the expropriation of those profits means the fair and equitable treatment obligation has been breached.
That language might sound soft, but that is the language that has been used for decades by arbitration tribunals in order to award hundreds of millions and billions against states. It is worth noting that under Article 8.10 of CETA:
When applying the above fair and equitable treatment obligation, 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 a matter of saying that we will pick on Canadian companies when we make that law about renters’ rights. If the Canadian company were encouraged to invest, as it would be because it is normal practice for countries to encourage companies to invest, the company would be able to say we encouraged it to invest and that it wants special treatment and special compensation. What happens then is the chilling effect, which is real and directly cuts across sovereignty. That is the issue. The Minister of State talked about policy freedom. We have talked about all of the obstacles. We have said it is terrible to have judicial reviews and all these obstacles to getting things done. A new obstacle to getting things done will have to be a legal analysis of who is going to sue us if we do this.
That chilling effect has had a direct effect. When Vermilion, a Canadian company that has a strong base in Ireland, sued the French Government over a potential climate law, that law was diluted. When David O'Sullivan came here to advocate for the ratification of these investor courts, I read out a piece from his law firm explicitly stating that threatening to take a case can get the law overturned. That is what the function is in many cases - it is the threat. Very importantly, the text of CETA states that when deciding how much of an award there will be, it takes into account if there was any repeal or amendment of the measure. If you change the law, we will charge you less. That is there as a chilling effect. It is there in the text of CETA with regard to how awards are calculated.
That is the picture we paint of the future and how this impacts on sovereignty. When it comes to budget time, it does not just compromise our policymaking in the day-to-day, but it also compromises our budget predictions. Do we now have to add a fund for how we are going to pay for potential cases? Will each Minister have to make the case as to why they should be given money, and that it is not going to come with an additional cost because they have already factored in keeping the corporations happy? That is the compromise of a policymaking decision that leads to future generations being betrayed when they elect people. I say this for all parties. This is not a left-right thing. This is when they elect people of any party based, for example, on a manifesto, or based on things they want delivered, and then that party says, actually, it will not come with any cost.
It was relevant to mention the occupied territories Bill because we all know that should have been passed ages ago. It is not getting passed because of pressure and concern around corporations and the corporate mood. Can we imagine if they also had a little instrument here to say, “And we will sue you”? That is what I do not know. I come back to this question; is it just that they want a photo opportunity or that the Government has not thought about the risk? Is it just recklessness or is it a willingness to compromise our sovereignty? Is it a desire to have a useful tool that stops the Government and future governments from doing things that might upset lobbyists? That is where we are at. I will come back to the specific amendments at a later point.
I would like a specific answer on the CETA text. Will there be a change to the CETA text to reflect what is proposed in the arbitration amendment? Has there been contact with the European Commission to seek assurances from our fellow EU member states that they will not be enforcing rulings if the High Court were to decide against it?

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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