Arbitration (Amendment) Bill 2025: Committee Stage (Resumed) Seanad Éireann — 2026-05-28 ============================================================ Alice-Mary Higgins (IND), National University of Ireland I move amendment No. 22: In page 4, between lines 19 and 20, to insert the following: “(4) The High Court shall have full discretion to refuse leave for enforcement of an award made pursuant to an international agreement to which this section applies where the calculation of that award has been affected by any repeal or modification of the measure giving rise to that award.”. This amendment goes to the core of what everybody has been saying throughout the debate, despite the litany of references to the right to regulate, namely, what is being talked about is the compromising of regulation, lawmaking and policymaking because of the economic impact. This is not a shift in the position. That has always been the case and is how it has often worked. I have given a litany of examples whereby companies have demonstrated that just by taking a case, they get to change the law. Vermilion, by threatening its case against France, got a change in the French climate law. The company got it diluted. The minister for the environment in that country was explicitly clear that was what had happened. There are multiple examples. Togo passed a decree in 2012 requiring health warnings text to cover 65% of tobacco packaging. British American Tobacco and Philip Morris claimed the rules violated their trade rights under investor-state dispute settlement, ISDS, and Togo was forced to scale back its plans. What was really important was that this was then given as the example to intimidate other jurisdictions from bringing in similar laws. It is only necessary to threaten to bring a case against one country and have it fold to create a chilling effect, where other countries may not attempt similar legislation. I will expand on this point in case there is any doubt at all that this chilling effect is part of the designed functioning of not just CETA but also the many other investor trade dispute mechanisms we may be signing up to in this Bill. In terms of CETA, the text of that agreement states that, "For the calculation of monetary damages, the Tribunal shall also reduce the damages to take into account any restitution of property or repeal or modification of the measure." It is literally there in black and white concerning what happens when it is being decided how much money a state will have to pay. The litany of awards has been huge. These are not small awards - they have run into hundreds of millions and even billions. This is what we have seen in the last few years. When it is being decided how big the bill will be, a tribunal will weigh up whether a law was repealed or modified. This is what is on the table. To be really clear, whatever about the right to regulate, in terms of the cost of making regulations and laws that reflect the actual will of the Irish people, their concerns and what they want to happen in a litany of areas we have heard about, right through from the environment to housing and public health, which has been a particular target of these kinds of cases, that is what is on the table. The Minister of State mentioned that the secrecy has been removed. I recall that I had to go and read the Transatlantic Trade and Investment Partnership, TTIP, in a private room with a pencil. That is where we were. The bar has not moved so much because there can still be requests for privacy in relation to certain parts of the detail of an adjudication. What is on the table when the bill attached to any law or public policy measure is being decided in these arbitrations is whether there was a willingness to compromise that law. That is the direct language. There is a reference to repeal or modification of a measure, namely, whether a country has been willing to repeal or modify a law. It is there on the bill. That is in the text of CETA, which does not seem to have moved on that much. Why have the right to regulate and then say "By the way"? We can regulate but whether we are willing to compromise on those laws is going to affect how big the rulings made against us will be. It will affect the size of the award that might be made. The chilling effect is built in. Leaving aside the chilling effect that happens due to the threat of a case and in terms of the cost of a case - by the way the costs are huge for cases for states, win or lose - if we do get to the table on this case, and if it does proceed, we will be under pressure to compromise on our law in order to ensure a lesser award. What I am simply saying in amendment No. 22 is that the High Court should not be asked to reward that. The High Court should have full discretion to refuse the enforcement of an award made under one of the many international agreements that may come in under this Bill, where the calculation of that award has been affected by repeal or modification of the measure giving rise to the award. If the amount of money that is being sought to be enforced against the Irish State has been affected by a compromise on the part of the Irish State in relation to the repeal or change to a law, that should not be enforceable in Ireland. Will the Minister of State clarify exactly where he is on that part of the enforcement piece in terms of being told this is how it operates? It is how this one operates too. It has been extremely effective. --- 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