Arbitration (Amendment) Bill 2025: Committee Stage (Resumed) Seanad Éireann — 2026-05-28 ============================================================ Alice-Mary Higgins (IND), National University of Ireland I move amendment No. 23: 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 applicant of such enforcement is in receipt of public grants, public investment monies or public procurement contracts related to the circumstances of the award." What the Minister of State has just described is exactly as it is: when rulings are made, compromising on those laws and on those measures can be a consideration. That is directly the chill effect in practice. That comes to this piece here. The Minister of State leant on the fact and he keeps using the phrases "the right to regulate" and "the mere fact". That means on its own it is a fact that it is not a consideration if a company would lose profits. It is not the mere fact, it is the fact combined with what the Minister of State described as abusive treatment and so forth. Those categories of what constitutes abusive treatment are the basis on which the awards are made and that is wide open in itself to abuse. Indeed, Ireland is extremely vulnerable under a number of those categories. Here is one that is really clear. It has been asked about repeatedly, including by Senator Sarah O'Reilly and others. When applying the fair and equitable treatment obligations, which is one of the grounds on which those awards could be made, consideration must be given not only to whether a company loses profits but also to whether it was treated unfairly and inequitably in regards to that. That is the key point. That is the situation whereby an award may be made, and that is the situation whereby a government may be offered the opportunity to repeal a law or change it in order to reduce the bill. While the fair and equitable treatment obligation has not so much changed - it is set out more clearly compared to some of the previous obligations - the basic grounds are the same. It also has subsection (f), which allows for other things to be added under fair and equitable treatment in the future. It is not a closed box of circumstances applying to fair and equitable treatment in terms of CETA. As I keep saying, this is not the only piece. There will be other worse agreements as well, potentially. In terms of this one, the category of fair and equitable is not a closed box. It can be expanded. The text of CETA explicitly states: When applying the ... fair and equitable treatment obligation, the Tribunal may take into account whether a Party made a specific representation to an investor to induce a covered investment, that created a legitimate expectation, and upon which the investor relied in deciding to make or maintain the covered investment, but that the Party subsequently frustrated. The point that was made relates to whether we have created inducements or encouraged a company to invest. For example, the IDA may have given them a grant or encouraged them to do so. We have a list. In the Beyond Barriers report that looked at trade, most of the areas of trade are all covered already and do not require the investor clause to operate. One of the things that Canadian companies mentioned is that they like the really proactive measures the Government takes to invite them and encourage them to invest. That is good, of course; that is what we should be doing. Nobody is against that, but the problem when we choose to make ourselves liable to an arbitration tribunal is that those measures such as making specific representations to investors, or inducing or encouraging an investment, are in themselves a consideration in whether that company was unfairly or inequitably treated. I give the example of a very large REIT, which was encouraged to enter the rental market in Ireland, and then new rental regulations come in. It may well go that it came in and subsequently the party, that is, the State, has frustrated the expectations it had in relation to the investment the State encouraged it to make. That is a wide-open goal in terms of rulings against the Irish State. There are multiple examples again here. The fact is that this proactive encouragement to business should not come with a risk attached and by choosing to make ourselves vulnerable to the decisions of these arbitration tribunals, we are unnecessarily rushing to create a new risk attached to the encouragement of investment. Incidentally, not having the investor court has not been an obstacle to it. We heard the Canadian ambassador say that there has been no obstacle with our other courts. Companies, of course, prefer these courts. With respect, it is not about mere fact, it is the fact plus the behaviour of the State, and the provision of fair and equitable means is wide open to be used by companies and has been one of the largest grounds on which previous cases have been taken. The Minister of State may say that they were different agreements but it is the same language. Nonetheless, even within this piece, it is explicitly clear that there is vulnerability. The Minister of State has been asked about this repeatedly. What risk analysis has been done around that question of the induced investment? Has there been proper consideration given in relation to our vulnerability when it comes to the provision of fair and equitable treatment? What this amendment will do, in terms of inducements, is ensure that the High Court will have full discretion to refuse leave for enforcement of an award made pursuant to an agreement where the applicant of such enforcement is in receipt of public grants, public investment moneys or public procurement contracts. What we do not want is to give a firm a public procurement contract, investment or a grant and it then gets to use that as proof that we gave it a reasonable expectation that then allows it to sue the State. That is exactly what is allowed under the CETA text, but it should not be enforced by our High Court. That is the vulnerability circle that has been created, and it is deeply regrettable. There are multiple examples of it. It was Veolia, I am almost certain, that got a contract in Argentina to provide water and when Argentina ended that public contract because the water was undrinkable, it was told that under the terms of the contract it did not have to be drinkable and a ICSID case was taken. Veolia said that it was simply required to provide water; not to ensure its drinkability. These are the kinds of cases and kinds of vulnerabilities that have been created. --- 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