Arbitration (Amendment) Bill 2025: Committee Stage
Seanad Éireann — 2026-05-20
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Thomas Byrne (FF), Meath East

I will try to deal with the various points that were raised. Senator Collins made the mistake that Senator McDowell made on Second Stage, which is to assume that the position started with the decision of Mr. Justice Charleton. The Senator makes worthy points, but when you are talking about constitutional law and trying to interpret the Supreme Court, you do not start with the dissent; you start with the majority.
I wrote down the various points that Senator McDowell made about this Supreme Court judgment. I never in my life heard such a hammering of the Supreme Court as I heard at points of his speech. He said that Mr. Justice Hogan's decision is worthless and is not worth the paper it was written on. He accused the Supreme Court of Ireland of advising on proofs. He said it was mistaken. I also know Mr. Justice Hogan, though not very well. He taught me law. He never once described a Supreme Court decision in the terms in which the Senator has described this one.
We must remind ourselves why we are here. We are here because Patrick Costello won, and the State lost, a case about the ratification of CETA and the constitutionality of the agreement. It is a fact that Mr. Justice Hogan set out a pathway, if the Oireachtas or the Government wish to take it. It was agreed by a majority of the justices of the Supreme Court. That pathway is exactly what we are providing with this legislation. We should respect the Supreme Court in the same way that the Supreme Court has respected the prerogatives and privileges of the Government, this House and the Dáil. Mr. Justice Hogan was clear that this is a matter for the Oireachtas. We must start by making that point. This is a pathway that has been suggested to us by the Supreme Court of Ireland. We are following it on the advice of the Supreme Court, the Attorney General, the lawyers and the trade experts. To describe what the Government is doing as reckless, mistaken or wrong is completely incorrect.
Senator Black was wrong on one point. None of the trade agreements mentioned in any way affects the right to regulate or the right of the State to decide its own public policy. I have stated that ad nauseam , and am more than happy to take the time that the Seanad offers to continue to state that into the record.
I agree with Senator McDowell on one point. He is right. The argument we have heard from some members of the Opposition in particular is that somehow this will affect our right to address housing and environmental issues. We heard that care workers will be at risk because of CETA. That is the latest scare story thrown into the mix. That is wrong. We are talking about agreements. I refer to all of them, not just CETA. I include the agreements with Chile, Vietnam, Singapore and Mexico. These agreements include articles which affirm that the parties preserve their rights to regulate for public policy purposes. They also provide that investment protection provisions shall not be interpreted as commitments on the part of governments that their legal frameworks will remain unchanged. The agreements further clarify that the fact that a measure may negatively affect an investment or an investor's expectation of profits is not sufficient to say that the measure is inconsistent with the agreement.
I draw to Senators' attention that the commitment to preserving the right to regulate, for example, in CETA, is not only reflected in the substantive articles addressing the issue but also in preambles to the agreements. I am more than happy to quote the various trade agreement if Senators wish me to. In the case of CETA specifically, the joint interpretative instrument confirms that:
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.
Talk about crossing the t's and dotting the i's.
CETA, in its very terms, defines indirect expropriation, specifying that non-discriminatory measures to attain legitimate policy goals regarding labour, health and the environment are not deemed to be indirect expropriation unless they are manifestly disproportionate. Some have acknowledged it, but other Senators have claimed, despite all this, that they would not be effective in practice. I also remind Senators that these agreements include provisions providing guidance to the investment dispute resolution tribunal, including in relation to the application of the right to regulate. I have previously quoted Article 8.9(2) of CETA, which provides:
The mere fact that a Party regulates, including through a modification to its laws, in a manner which negatively affects an investment or interferes with an investor's expectations, including its expectations of profits, does not amount to a breach of an obligation under this Section.
These agreements include clearly defined investment protection standards, including unfair, inequitable treatment and expropriation, and provide clear guidance to tribunals as to how these should be interpreted.
I turn to Article 17.3 of the Chile agreement. I was not here when she said it, but Senator Black stated that certain matters were not in these other agreements. The Chile agreement states:
The Parties affirm the right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, social services, education, safety, the environment, including climate change, public morals, social or consumer protection, privacy and data protection, or the promotion and protection of cultural diversity.
The Vietnam agreement would need this legislation for us to ratify it. Article 2.2 states:
The Parties reaffirm their right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, safety, environment or public morals, social or consumer protection, or promotion and protection of cultural diversity.
Article 2.2 of the Singapore agreement states:
The Parties reaffirm their right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, social services, public education, safety, environment or public morals, social or consumer protection privacy and data protection and the promotion and protection of cultural diversity.
Article 10.3 of the proposed agreement with Mexico states:
The Parties affirm the right to regulate within their territories to achieve legitimate policy objectives, such as public health, social services, public education, safety, environment, public morals, social or consumer protection, privacy and data protection, the promotion and protection of cultural diversity, or competition.
There are many other references that I could quote.
Senator McDowell and others raised the issue of whether we need a protocol for this legislation. I reject the suggestion that we need a protocol. Senator McDowell stated as a matter of fact that because he had appeared before the European Court of Justice that he could tell me how it would decide. I have also been involved in cases before the European Court of Justice and I would not claim to know, based on that, what it would decide. Of course, Mr. Justice Hogan was the Advocate General of the Court of Justice of the European Union. I assume he has information similar to that which the Senator has. The question the Senator raises is based on a misperception that the Bill is in conflict with the provisions of CETA and, therefore, you would need such a protocol. That is not the case. The Bill has been drafted to ensure compliance not just with the Constitution but also the international obligations that we will assume upon ratification of the relevant international agreements, and, therefore, we would not need it. As the Chief Justice said, CETA only requires that under Article 8.4(1) of the agreement, the execution of the award shall be governed by the laws concerning the execution of judgments or awards enforced where the execution is sought. In the case of Ireland, that is the legislation we are considering. It is a sovereign matter for us.
I heard the case made in arguments by Senators McDowell, Collins and Higgins that somehow the trade agreement, CETA, and EU law overrule these provisions. An argument has been raised that when CETA is fully ratified, the enforcement of awards becomes a necessitated obligation of EU membership - and large parts of the Opposition consistently voted against us having necessitated obligations, but they have been hugely beneficial to our economy and society - and, therefore, any constitutional discretion would vanish. As stated, the Supreme Court not only identified constitutional concerns which prevented the ratification of CETA as Irish law then stood, but the majority, as I have said, identified this legislative path.
To be clear, with the assistance of the Attorney General we have carefully considered what the Supreme Court has said. It is not open for the Government to say that this decision is worthless. It is not open for us to say it is mistaken or just advising on proofs, as Senator McDowell has said. We have a policy objective to ratify CETA and the only way we can do it is to, first of all, pass this legislation and then, in accordance with our Constitution - and I mean no disrespect to the Seanad - we have a vote in the Dáil. That is the only way we can do it. We wish to do it as a matter of policy. Execution of the award, as I have said before, is a matter under national law. That is the reality.
The point has been made time and time again that we do not need to do this because it is in force. People are just coasting over the benefits of this trade agreement as if they are automatic. First of all, we only get the benefits of these trade agreements - and there are so many of them that have been hugely beneficial to Ireland, probably disproportionately so - because when they are ratified, they become necessitated obligations of the European Union. There are European Union trade negotiators who, on behalf of all member states, negotiate trade agreements on our behalf. We get huge benefits from those trade agreements and as a small, sovereign independent state not connected to the European Union, I think we would have great difficulties in negotiating trade agreements with individual member states in terms of the time it would take and whether other states would want to do trade agreements with small countries. The benefits to this country of the European Union having trade competence are hugely important.
What would be the costs if we did not ratify this or if we rejected CETA? As the regulatory impact analysis assessment of the Department said, this option - rejection of the agreement - has the potential to cause the collapse of the agreement in its entirety. If Ireland or any EU member state did not satisfy CETA, it would be a first for an EU trade agreement. Given that such a step would be unprecedented, it is not clear what would follow in terms of the level of legal and reputational cost for Ireland and the EU, though it is likely to be significant. It is also not possible to anticipate Canada's willingness to renegotiate only particular elements of such a comprehensive agreement.
We make the case very strongly for CETA and the benefits of trade agreements. The Opposition, which is opposed to this legislation, says today it is in favour of all the benefits of the trade agreement but it never said this back in 2016 or 2017 when those benefits were not apparent. We came in and said this is good for us because it will create jobs and opportunities in this country. That has happened - more than we ever imagined. It involves, at international level, negotiation of agreements. As Senator McDowell has rightly said, certainly in the EU there is a sharing of sovereignty. Any time you make an agreement with another international entity, a country or whatever, you are in some way sharing your sovereignty but that then gives us huge benefits. Those benefits are now taken for granted but the very strong point I am making is I do not believe we can take these benefits for granted.
Senators have raised previous cases. I cannot comment on NAFTA cases as we were not party to that treaty but they have raised cases under the long-standing investor-state dispute settlement system, which was common enough in the older agreements. There have been no cases actually decided to date. We have had no judgments against us under the old system and there have been none decided under the new system, which is what we are talking about here - the investor court system. The cases that have been referenced and cited previously were part of the old, long-standing system of investor-state dispute settlement. Under the new ICS, which is in the CETA agreement and the other agreements we talked about and which this Bill would enable us to ratify, significant and targeted improvements have been introduced to address the concerns that have been raised in relation to the long-term system - some of which Opposition Senators have quoted from today - and to improve on that. The intention of the new system, which is part of CETA - which we have had no decisions from yet, by the way, because CETA has not been ratified - is to learn from the shortcomings of the ad hoc ISDS system and introduce a new and improved approach. Cases decided under the old system, therefore, do not provide an accurate indication of how the new system would work and how cases under this system would be decided and enforced.
As mentioned previously, this is a very different system that took the concerns about the old system to heart. Concerns were listened to in relation to this and the negotiators and the State did their best to alleviate those concerns. The concerns were listened to about the right to regulate. Every t was crossed and every i was dotted. It is in every agreement, the interpretative statement and the instructions to any potential investor courts. Again, Senator McDowell, who is totally opposed to this Bill, agrees that is not true. I think Senator McDowell comes from the point of view of sovereignty but not the point of view of the right to regulate being at risk. We say that it is not at risk and it simply could not be clearer. People who continue to make this case are really not looking at the text of the agreement, the text of the interpretative statement or the other provisions that relate to this.
I also object to something else. I will not say it. I will say it later, maybe. There was another point I was going to object to but I think I have raised most of the legal points. There may be other questions. People accuse us of wanting to guillotine this legislation. I got to speak after two hours. I am happy to listen to every section of this and go through it but there is a happy medium between filibuster and guillotine. I think we can all agree where that happy medium lies, in my opinion. I am not accusing anyone of filibustering so far.

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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