Arbitration (Amendment) Bill 2025: Committee Stage (Resumed)
Seanad Éireann — 2026-05-28
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Thomas Byrne (FF), Meath East

The amendment proposes to assign a broad and ill-defined discretion to the High Court regarding the enforcement of relevant awards. I again repeat that we are designing this following the Supreme Court decision on the Costello judgment, in particular the comments of Mr. Justice Hogan. In CETA, there are specifications regarding final awards. Article 8.39 sets out the specifications regarding final awards in relation to the measure or measures challenged in the claim. The tribunal may only award monetary damages or restitution of property, with the right of the State to pay monetary damages instead. The article specifies that monetary damages shall not be greater than the loss suffered by the investor or, as applicable, the locally established enterprise, reduced by any prior damages or compensation already provided. In the calculation of monetary damages the tribunal shall also reduce the damages to take into account any restitution of property or appeal or modification of the measure. This provision is in keeping with the trend of limiting available remedies for investors and, contrary to the Senator’s assertions, is in line with the goal of preserving the regulatory space of states. I completely reject the proposition argued here that the provisions in CETA restrict the protections and the right to regulate and increase the risk of regulatory chill. In fact, arguments relating to the right to regulate would have to be considered by the tribunal before an award is made. As noted, the right to regulate in the public interest is protected in these agreements. These provisions mean that the mere facts that interests of an investor are adversely affected by measures taken to regulate in the public interest will not amount to a breach of the agreement. That will not happen. However, if there is an added element, for example, abusive treatment, manifest arbitrariness, targeted discrimination or some equivalent behaviour on the part of a party, it is that added element that would bring a claim within the scope of the agreement’s protections and thus potentially result in liability for the party concerned. I have given some extreme examples of where that might happen that Irish companies would have protection for in Canada as well, which is an added part. In such cases where a violation has been found and an award has been granted, the tribunal cannot order a change to the measure giving rise to the award, but the respondent party could choose to make a change. If such a measure is repealed or modified – this is in a case where a violation has been found, and that violation will not be found based on the right to regulate – it is appropriate that the award would be reduced to reflect this change. A number of things have been conflated here in the argument of the proposers. For that reason, I am unable to agree to this amendment.

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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