Arbitration (Amendment) Bill 2025: Committee Stage (Resumed)
Seanad Éireann — 2026-05-28
============================================================

Nessa Cosgrove (LAB), Labour Panel

I move amendment No. 14:
In page 4, between lines 19 and 20, to insert the following:
“(4) Without prejudice to the generality of subsection (3) and as non-exhaustive examples of the operation of that subsection, the Constitutional order of the State would be compromised if enforcing an award would expose the State—
(a) to an award of damages, on a strict liability basis, arising from the enactment by the Oireachtas of a law—
(i) the validity of which had been upheld in accordance with Article 34 of the Constitution, or
(ii) the Bill for which had been referred to the Supreme Court by the President under Article 26 of the Constitution,
or
(b) to an award of damages which in substance amounted to a collateral attack on a decision of the Supreme Court that was, by Article 34.5.6 of the Constitution, made final and conclusive.”.
I note the discussion we have just had. We are giving an amendment here that I think the Minister of State could accept. This amendment would clear things up. It is based on the Supreme Court judgment of Mr. Justice Hogan. It is our view that the CETA tribunal decisions will be unenforceable in the Bill. The judgment in the case of when an investor is suing the State before a tribunal for damages arising from the passing of legislation that impairs the investment in some way, a strict liability rule would compromise our domestic constitutional order and the Oireachtas must have the freedom to take policy decisions. I think the Minister of State agreed to that himself.
If, however, the law was challenged domestically and was upheld by the Supreme Court, whose decision is final and conclusive, it would compromise our constitutional order if an investor could obtain an enforceable award of damages arising from the Supreme Court having made that decision. It is clear that assuming the procedural formalities have been complied with and in the absence of some highly unusual defence, such as fraud, the High Court enjoys no real discretion and has little option but to give effect to any award of the CETA tribunal. The fact that in those circumstances the State could thereby be exposed to damages claims on a strict liability basis in respect of otherwise validly enacted legislative measures is sufficient for constitutional purposes since it necessarily compromises the legislative sovereignty of the State, thereby we think it is violating Article 5 of the Constitution.
Another effect of CETA is to allow a body composed of persons who are not judges and who are not appointed - again, we are not anti-EU, this is what we are anti - or answerable to any of the institutions of the State to exercise judicial powers in respect of the State and critically, to give the judgment which is binding and enforceable under our own domestic law. We think again that this is incompatible with the judicial sovereignty of our State and would therefore hold the ratification by the Government of CETA in its present form would infringe again upon Article 5 of the Constitution, read in conjunction with Article 34.1.
The creation of CETA joint committees with the powers to make binding interpretative decisions for the State in respect of important aspects of trade policy and in respect of whose activities the State would have no guarantee of being able to exert direct control or influence means that the necessary democratic control is not present. In these circumstances the conclusion is that the ratification of CETA would also violate the democracy guarantees of Article 5 of the Constitution is inevitable.
We are giving the Minister of State a really good opportunity to accept this amendment, which would alleviate the concerns we have and would actually rely on our own courts system instead of this parallel, new court system.

---

Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted.

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