Arbitration (Amendment) Bill 2025: Committee Stage (Resumed) Seanad Éireann — 2026-05-28 ============================================================ Michael McDowell (IND), National University of Ireland I want to intervene to mention that while I was temporarily out of the Chamber the Minister of State took it upon himself to say I was dismissive of Mr. Justice Gerard Hogan. I am not dismissive of him at all. He is a good friend and a jurist whom I admire greatly. I am however dismissive of the suggestion that Ireland can unilaterally and without making a protocol or reservation of any kind in acceding to the CETA agreement reserve unto itself in safety the right to refuse to implement awards of the arbitral courts on the grounds that they conflict with the Irish constitutional order. I say that because if somebody came to the courts in Ireland and was confronted by a defence by the Irish Government that to implement the agreement would contravene the Irish constitutional order, the dissatisfied Canadian investor or whoever else it may be under some future agreement could ask the Irish court to ask the European Court of Justice to rule as to whether Ireland's refusal to implement the award was consistent with the law of the European Union, and on that matter I favour hugely the view taken by Mr. Justice Charleton rather than the view taken by the majority in the Supreme Court. I want to make one final point. The Minister of State on the last occasion correctly said that one judge, to wit the Chief Justice, who was in the minority, had responded to some of Mr. Justice Charleton's points. He had, but in respect of many of them, he did not. He effectively dismissed – if I may use that phrase – the views of Mr. Justice Charleton in a laconic way. What I am saying is that if this matter ever comes before an Irish court, and if it ever gets to the Court of Justice of the European Union to rule on Ireland's refusal to implement the award of an arbitral court under the CETA agreement, or any other agreement, on constitutional grounds, which has become binding as a matter of European law, the European Court of Justice will have jurisdiction to determine that issue if it is asked by an unhappy investor. As I said on the last occasion, I would put my life savings on the proposition that they would say that Ireland cannot do that. I say that because the Vienna Convention and the Washington Convention – all of these things – make it quite clear that where a treaty or international agreement is adhered to by a member state, if you want an opt-out in terms of your domestic law, that has to be signalled to everybody so that everybody else who is party to the agreement knows that it is the situation. I want also to make the point that the Attorney General, when confronted with the interaction of CETA with the 2010 Act said the following in his submission to the court. He said nothing prevents the Oireachtas from amending or even repealing the 2010 Act if it wished. The interaction of CETA with the 2010 Act cannot credibly be suggested to constitutionally diminish sovereignty. That was the position of the Attorney General in the court when he made a submission. The court took a different view. Now we have the Attorney General effectively advising – if the Minister of State's description of his advice is correct – that this makes everything constitutional - that we are amending the Arbitration Act to accommodate this. All I am saying is we may think that in relation to domestic enforcement but in the end the European Court of Justice will have the final say. I cannot believe that it would uphold a unilateral provision which, in the words of the Attorney General, can be amended or repealed at the wish of the Oireachtas – that that changes Ireland's obligations under the statute. I will conclude by saying this: we should not ratify CETA. Other states are not ratifying CETA. We should not do so for one very solid reason: every Canadian investor should have total confidence in the Irish legal order to uphold his or her rights in Ireland. That may not be true in terms of confidence in all of the member states in the European Union, but it is true about Ireland. We have a comparative advantage in that our legal system is totally trusted by outside investors. The experience since the provisional entry into force of CETA has shown that the issue of whether Ireland should or should not be bound by the arbitral courts has in no way inhibited Canadian-Irish trade or investment. My last point is an ideological one. We are elevating international capital to an equivalent position on the plinth of international law with a private investor's interests on the one hand, and with a state's capacity to govern its own jurisdiction in a democratic manner on the other hand. International capital has no such rights. It does not have those rights. It should not be accorded those rights. In the last analysis, every member state of the European Union and every member of the United Nations must do its utmost to preserve its own capacity to fend off challenges or threatened challenges from international capital when it conflicts with the sovereign independence of the institutions of that state. I will finish by saying that CETA is unnecessary insofar as it is not yet in operation. The arbitral system envisaged by CETA is unnecessary and it is a precedent that the Department of Foreign Affairs and Trade should in future avoid. The Department should say Ireland does not need and is not signing up to these types of provisions, which are in effect elevating international capital to coequal status with sovereign states. That is not in the Irish interest or the people’s interest and ultimately it is not consistent with the spirit of our Constitution. --- 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