Arbitration (Amendment) Bill 2025: Committee Stage (Resumed)
Seanad Éireann — 2026-05-28
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Chris Andrews (SF), Labour Panel

I move amendment No. 11:
In page 4, to delete lines 14 to 19 and substitute the following:
“(3) The High Court shall refuse leave under subsection (2)(i) where, having considered the matters in subsections (3A) and (3B), it considers that enforcement of the award would—
(a) materially compromise the constitutional identity of the State,
(b) materially compromise fundamental principles of the constitutional order of the State, or
(c) materially compromise the State’s obligation (reflected in Article 29.4.4 of the Constitution) to give effect to European Union law (including the Charter of Fundamental Rights and Freedoms) and to preserve its coherence and integrity.
(3A) Without prejudice to the generality of subsection (3), enforcement shall be refused where the High Court is satisfied that the award (or the reasons for the award) involves any of the following:
(a) is founded on a determination that an action or decision of the people, at a Referendum in accordance with the provisions of Article 46 or Article 47 of the Constitution, constituted or contributed to a breach of the international treaty in question,
(b) is based upon, or gives effect to, a refusal by the relevant tribunal to follow a material decision of the Court of Justice of the European Union,
(c) is inconsistent with, or would require the State (or any organ of the State) to act inconsistently with, a final and conclusive decision of an Irish court,
(d) is founded on a determination that an Irish court has denied justice or committed a fundamental breach of due process in judicial proceedings, in circumstances where enforcement would amount in substance to a collateral attack on the finality and conclusiveness of such decision,
(e) would impose on the State liability in damages in respect of the enactment or maintenance of a legislative measure (or a measure having the force of law) enacted in good faith within the State’s constitutional order, or
(f) would otherwise be at odds in a material way with the legislative and juridical autonomy of the State.
(3B) For the avoidance of doubt, the categories in subsections (3) and (3A) are not closed.
(3C) An application for leave under subsection (2)(i) shall be determined on notice to the parties and after hearing such parties as the Court considers appropriate.
(3D) The burden of establishing that leave should be granted and that none of the grounds requiring refusal under subsection (3) to (3B) arises shall rest on the party seeking enforcement.”.
Amendment No. 11 seeks to add clarity to the situation where the High Court can set aside an award made by investor courts falling within the scope of this Bill. Currently, the wording is that awards are not and never were enforceable if they compromise the constitutional order of the State or the autonomy of the legal order of the EU. There was discussion in the other House about the lack of concrete definition of what that would mean and our amendment seeks to add some form of clarity to that. The proposed subsection 3B is clear that the definitions we have provided are non-exhaustive. The Minister of State previously defended the vague and unexplained definitions that are currently in the Bill. I want him to clarify what he understands these terms to mean.
This Bill will have profound consequences on the right to regulate and for the prerogatives of the House to exercise our constitutional functions. For example, if a government made a decision to oppose a Private Members' Bill or an amendment based on the threat of potentially being sued under these international agreements, is the Minister of State be of the opinion that this would compromise the constitutional order of the State, particularly Article 15 of the Constitution? If any government decided not to provide a money message for a Bill due to fear of litigation, would that compromise the constitutional order of the State?
On the autonomy of the legal order of the European Union, does this mean the treaties, the Charter of Fundamental Rights of the European Union, the CJEU, case law and directives or regulations? This is a really important clarification we need because the House is being asked to pass legislation on foot of a Supreme Court ruling without pre-legislative scrutiny or a commitment that the Government will not guillotine the debate, which is happening.
We also need to examine the issue of automatic enforcement, which was aired quite extensively in the Costello case. In 2022, the Supreme Court found that the ratification of CETA would detract from the jurisdiction of the Irish courts, contrary to the Constitution, because a judgment at the CETA tribunal would be made virtually automatically enforceable in the High Court and the High Court would have no power to refuse enforcement, even where the award fundamentally compromised the Irish Constitution or EU law. This would undermine the conclusiveness and sovereignty of our courts system and I am not convinced that this Bill, as it stands, has clarified that.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-05-28/debate/main
Retrieved: 2026-08-14T04:55:01+00:00
Sitting date: 2026-05-28