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

I will be brief because I am keen to get to my amendments. In the spirit of the yes-no answers, I would like just a few, and the Minister of State might front-load my questions - I know he will be limited in his time for a response - to ensure they are answered.
The Minister of State has focused again and again on the right to regulate and t's and i's. The right to regulate is there. Of course it is. It would be quite something if they could take away the right to regulate. The sovereignty and the courts issue has been examined in detail but the impact on the sovereignty in a legislative way is through the cost of regulation. We are signing a blank cheque in respect of the future cost of regulating, passing laws and giving effect to the mandate the public give us. In that regard, that blank cheque is very clear. Can the Minister of State confirm - I can confirm, but can he deny - that "unfair and inequitable treatment", the language that is here still in the investor court system, is the basis on which multiple very large million-dollar and billion-dollar awards have been made against states in the past? It is unfair and inequitable treatment. The Minister of State did not respond to the fact that in the text of CETA it mentions inducements, of encouraging investment, as one of the grounds which make more likely a judgment of unfair and inequitable treatment. These are the facts. Can the Minister confirm - I can confirm, but can he deny - that as regards all this investor court system or supposed reform he has mentioned, that same language, "unfair and inequitable", is there and the interpretative agreement is something signed by Canada and the parties? It is not signed up to by corporations. Yes or no, is it not the case that those corporations can also choose and seek to have their trial heard under the old ICSID rules? They are not obliged to go with the investor court system. They can go under the old rules that gave us those multiple rulings the Minister of State is trying to tell us are not relevant, even though the grounds are the same. Can the Minister of State also confirm that, as I said, there has not been a risk analysis in relation to that question of the clause on inducements? As my colleague has just said, can the Minister of State confirm that there is nothing in this legislation that confines the arbitration findings to the investor court system? It simply refers to an investment dispute resolution provision attached, so it could be anything. This lengthy discussion about the ICS is a little by the by because it is not necessarily going to be the ICS. It could be one of the old bad tribunals again.
Lastly, on the cost, can the Minister of State tell us what analysis has been done in terms of the chilling effect? Can he confirm that the Energy Charter Treaty has never been a consideration in relation to any law made in Ireland in any shape or form and has never influenced or helped make any decisions in that regard? Not that it has been said publicly, but has it ever been part of an Attorney General's advice, perhaps? Is that something the Minister of State can come to us with? Again, when I mention the blank cheque that attaches to laws, the fact that a change in the law leads to a reduction in costs is a direct input on sovereignty whereby the cost will change according to the obedience of the member state or the state that has been taken to court.

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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