I welcome the Minister of State, Deputy Byrne, who is here to debate this all-important topic. The floor is his.

Tá áthas orm teacht isteach anseo agus an Dara Chéim den Bhille Eadrána (Leasú), 2025 os comhair an tSeanaid agus faoi bhráid na Seanadóirí. The purpose of this Bill is to amend the Arbitration Act 2010 in order to enable effect to be given in the State to the provisions of certain international agreements relating to the protection of investment. The programme for Government agreed following the 2024 general election commits to the ratification of the Comprehensive Economic and Trade Agreement, CETA, between the European Union and Canada and to supporting an ambitious EU trade agenda promoting new free trade agreements. Interestingly, in today's EMI poll on the European Union, trade is one of the areas the Irish public thinks the European Union is doing a good job on.

Enactment of the Bill is an essential step towards ratification of international agreements concerning the European Union's new generation investment dispute resolution regime. It is important to consider that this is a new generation investment dispute resolution regime. This is my fourth time to debate this Bill in the Oireachtas. It passed all Stages in the Dáil. I look forward to the Seanad's examination of the Bill today and to Committee and Remaining Stages.

Before we consider the detail of the Bill, it is important to outline the wider context of Ireland's and the EU's trade and investment policies. Trade and our trading relationships with partners around the world are a central feature of our economic model. This is how we pay the national wage. EU membership amplifies our voice, strengthens our influence and enables us to advocate for solutions that work for Ireland, Europe, the wider global economy and people, but we cannot be complacent. The international environment is more volatile, unpredictable and transactional than at any time in recent decades. In response to the geopolitical turbulence that all EU member states find themselves facing, the Government is working to make the Irish economy more competitive and resilient to economic shocks. The Bill seeks to put Ireland in a position whereby we can ratify the range of EU trade and investment agreements from which we derive massive benefit.

Through the EU we have been part of an expanding network of free trade agreements that create opportunities for exports and investment, support jobs and growth at home. These agreements also help to promote EU values globally, from labour standards to human rights to climate action. Recent EU trade agreement negotiations have included dedicated chapters or stand-alone agreements providing for the protection of investment. As such, EU trade agreements include investment liberalisation commitments that provide an important advantage to EU companies, including Irish companies, in accessing third country markets. Investment protection provisions, including investment dispute resolution, are a logical complement of the liberalisation provisions. Together, investment liberalisation and protection ensure a business-friendly environment and provide a stable legal framework that encourages investment flows between the EU and third countries.

It is important to emphasise that the investment dispute resolution provisions in this new generation of EU trade agreements we are concerned with differ significantly from the long-standing investor-State dispute settlement system, ISDS, which is included in most bilateral investment treaties. Given that Ireland does not have any bilateral investment treaties, there are some misconceptions about how these tribunals will operate. In light of the shortcomings that have been identified in cases brought under the old ISDS system, the EU and its member states have developed the new investment court system contained in relevant EU trade and investment agreements. This new system introduces crucial reforms to address concerns regarding ISDS. I draw the attention of Senators to the fact that to date no cases have been decided under the investment court system because none of the agreements containing this new dispute resolution system has yet entered into force.

The shortcomings attributed to the old system include a perception that the ad hoc tribunals provided under other forms of investment agreements and treaties lack predictability, legal certainty, transparency, independence and impartiality, and that there is a risk of regulatory chill, that is, a perceived reluctance to amend regulation, for fear of being sued by an investor. To overcome these perceived shortcomings, the EU and its member states put forward reforms to address these concerns head-on. Those reforms include: providing for standing two-tier tribunals established under each agreement, as opposed to the ad hoc establishment of ISDS panels; cases being allocated at random so that the disputing parties do not know in advance which tribunal members will decide on their case; strict requirements on the qualifications and independence of members of the tribunals; detailed transparency rules; and provisions to prevent abuses, including early dismissal of claims that are manifestly without legal merit. I emphasise that there are very clear provisions preserving the parties' right to regulate for public policy purposes. This means that the Government and these Houses have the right to take measures to achieve legitimate public policy objectives.

I will highlight one EU trade agreement specified in the Bill that combines more open trading alongside investment protection provisions. I refer here to CETA, which is one of the most important and beneficial trade agreements concluded by the EU. It has already proven enormously beneficial for citizens and businesses in the EU and Canada. Ireland enjoys particularly strong political, economic and cultural ties with Canada, based on our shared history and a shared commitment to democracy, human rights and a rules-based international order. Over 4.4 million Canadians, more than one in ten of the population, claim Irish ancestry. When the Taoiseach was in Ottawa in last September, he invited the Prime Minister, Mr. Carney, who is one of those Canadians with Irish heritage, to visit Ireland this year.

The Government has significantly increased the State's diplomatic presence across Canada. We continue to invest in partnerships at city, provincial and federal level. Canada is a key export market for Ireland and an important focus for Ireland's new market diversification strategy. CETA has contributed to a significant increase in Ireland's bilateral trade in goods and services with Canada since its provisional application in 2017. This trade increased from €3.2 billion in 2016 to more than €12 billion in 2024, supporting thousands of jobs and benefiting large and small businesses throughout the country.

The facts show that CETA has been good for Irish business, Irish jobs and Irish households.

A report on further deepening trade between Ireland and Canada was launched by the Taoiseach during his Ottawa visit. It shows potential for further trade and investment co-operation. Canadian companies employ more than 22,000 people in Ireland while Irish companies employ more than 19,000 people in Canada. It also highlights the potential to increase traded goods between our countries by €1.2 billion annually, a 34% rise, and to expand trade in services by almost €500 million. Claims have been made that we should not be concerned with ratifying CETA as the parts that provide for more open trading are provisionally applied. However, provisional application is not the same as ratification. Provisional application is an important mechanism that allows companies and consumers to benefit from a trade agreement at an early stage as the completion of ratification across all 27 member states in their democratic process can take a number of years. The agreement in its entirety can only apply fully once all internal processes are completed and this stands for the trade components as it does for the investment protection parts of the agreement. It cannot be argued successfully that we have secured the trade aspects of the agreement and therefore we do not need to ratify the agreement in full. The status of our ratification is actually raised bilaterally by Canada, including with myself directly, and indeed by the European Commission.

The Bill also includes the EU-Chile Advanced Framework Agreement. Our relationship with Chile has been strengthened significantly by the opening of the Irish Embassy in Santiago in 2019 as part of the global Ireland programme and the delivery of commitments set out in Ireland’s strategy for Latin America and the Caribbean. There has been ongoing high-level political engagement since the Irish Embassy opened including meetings between former President Higgins and former President Boric and then-Taoiseach, Deputy Simon Harris, and President Boric in 2024. Chile is one of South America’s most stable and prosperous countries. It leads the Latin American region in human development, competitiveness, income per capita and economic performance. Our exports to Chile are dominated by high-tech pharmaceuticals, medical devices and services. At a combined €342 million of exports and imports, Ireland has significantly increased trade in goods with Chile. In the past year alone, Ireland’s goods exports to Chile have grown by a remarkable 87%. That means real jobs in Ireland. Additionally, business services including operational leasing constituted 79% of the €980 million Irish trade in services to Chile in 2024. Chile is essential to the world economy supplying 27% of global copper and 32% of global lithium demand. For the EU, including Ireland, securing access to critical raw materials through the agreement with Chile is a cornerstone of our strategic autonomy, enabling the EU to reduce our reliance on dominant suppliers amidst intensifying global competition and providing crucial inputs to support the EU’s ambitious decarbonisation goals.

As colleagues will be aware, in November 2022 the Supreme Court held in the Costello case that the Constitution precludes the Government and Dáil Éireann from ratifying CETA as Irish law then stood. The Supreme Court also held that the concerns identified in the Costello case could be cured, if amendments were made to the Arbitration Act 2010. The Supreme Court, in the Costello case, therefore not only identified constitutional concerns which prevented the ratification of CETA as the law then stood but also identified a legislative path for curing the concerns that had been identified. The Government has carefully considered the Supreme Court’s judgment and the Bill put before this House is presented in response. The Bill addresses the Costello case and will amend the Arbitration Act by introducing a new procedure in Irish law for the enforcement of awards in Ireland made by tribunals established under CETA and similar international agreements. It will specify applicable grounds on which an award may not be enforced. The Bill has been drafted in adherence to the Constitution and the international obligations which Ireland would assume upon ratification of the relevant international agreements. I wish to emphasise that passing this Bill ratifies neither CETA nor the EU-Chile Agreement, as these require separate Government decisions and Dáil motions under the Constitution. However, by curing the constitutional concerns identified by the Supreme Court in the Costello case, enactment of this Bill is an essential step towards ratification of these trade and investment agreements which are in Ireland’s economic interests.

Statutory instruments pursuant to the new section 25A will further be required to prescribe other EU-third country agreements containing similar models of investment dispute resolution provisions, which could be with Vietnam, Singapore and Mexico, before those agreements can also be ratified.

Senators have a copy of the Bill. It is a very short and technical Bill comprising five sections. Section 1 is a standard definitions provision.

Sections 2 and 3 of the Bill make technical amendments to the 2010 Act to reflect changes that will be effected by the present Bill.

I draw particular attention to section 4 of the Bill, which amends the Arbitration Act 2010 by inserting a new section 25A. The new section 25A has six subsections that will establish a new procedure for the enforcement of awards made under relevant international agreements in the State. Subsection (1) of the new section 25A provides that the section applies to the EU agreements with Canada and Chile and to international agreements that are then prescribed by ministerial order.

Subsection (2) provides that awards made pursuant to an international agreement to which the section applies will be enforceable in the State by leave of the High Court in the same manner as a judgment or order of the High Court. This reflects the requirement in the relevant international agreements that “execution of the award shall be governed by the laws concerning the execution of judgments or awards in force where the execution is sought”. Subsection 2(b)(ii) specifies that these awards are only enforceable in the State under section 25A.

Subsection (3) declares, for the avoidance of doubt, that such an award:

is not and never was enforceable in the State if enforcing the award would compromise—

(a) the constitutional order of the State; or

(b) the autonomy of the legal order of the European Union.

This subsection addresses the constitutional impediment identified in the Costello case and specifies applicable grounds on which an award may not be enforced in this jurisdiction, which complement the new enforcement procedure introduced at subsection (2).

Subsection (4) provides that there is no appeal from the High Court to the Court of Appeal on any determination by the High Court in relation to an application to enforce an award but that an appeal to the Supreme Court may be made if the Supreme Court accepts the appeal in accordance with the Constitution.

Subsection (5) empowers the Minister for Foreign Affairs and Trade, after consultation with the Minister for Justice, Home Affairs and Migration, to make orders prescribing certain international agreements concerned with the protection of investment as ones to which the new section 25A will apply.

Subsection (6) is a standard technical clause which specifies that every order made pursuant to subsection (5) must be laid before each House of the Oireachtas and may be annulled within 21 days. That is a standard clause.

Section 5 of the Bill is also a standard provision and provides that the Act will come into operation on such day, or days, as the Minister orders after consultation with the Minister for Justice, Home Affairs and Migration.

While this is a short and technical Bill, it is a necessary step to enable the State to ratify these international agreements under the EU’s new investment dispute resolution regime. The Bill addresses the findings of the Supreme Court in the Costello case by introducing a procedure for the enforcement of such awards and specifying grounds upon which such awards may not be enforced in the jurisdiction.

Enactment of this legislation will enable Ireland, the Dáil and the Government decision to ratify CETA, the EU-Chile agreement as well as other EU-third country agreements with similar models of investment dispute resolution provisions. At a time when free trade and the benefits it has brought to the Irish economy is under increasing pressure, it is an important statement that Ireland is seeking to ratify these trade agreements, which will provide Irish companies and exporters with new opportunities to expand and grow trade overseas. Enactment of this legislation and the subsequent ratifications of the relevant trade and investment agreements will equally be an important signal to Ireland’s partners of our continuing commitment to multilateralism, to the international legal order and to the deepening of our bilateral relationships.

I thank Senators for their consideration and commend the Bill to the House.

I thank the Minister of State. I welcome Deputy Barry Ward accompanied by his daughter, Robin, his mother-in-law Paula McLoughlin, and guests Andrew Chan, Pauline Chan and Alvin Chan who are visiting from Malaysia. They are very welcome. I hope they enjoy their visit to Leinster House.

I welcome the Minister of State to the Chamber. I welcome the Arbitration (Amendment) Bill 2025. The Minister of State has provided a lot of information so I will not rehash it. We are on the same page on this. There is no need for me to go through everything the Minister of State has just said.

Since yesterday afternoon, my phone has been hopping. I have put it away now because it is still going on. I received over 700 emails. If I am to believe the content of those emails, the passing or not of this Bill is actually the passing of CETA.

That is the information in the emails I have received, which also state that we are setting up a secret corrupt court. What sounded alarm bells for me in this regard was that when I checked the sender address on those emails, I discovered that all 700 came from the same address. That makes me question the bone fides of said emails.

The investment court system is made up of 15 individuals - five from the EU, five from Canada and five from third-party countries. That is in the context of the CETA investment protection provisions. Cases are heard by three individuals - one from each group. That could not be any further from the secret corrupt court that I am being warned about. As the Minister of State has said, on the back of the Supreme Court decision, the legislation needs to be amended in order that awards made pursuant to the investment protection provisions can be enforced. Again, the emails I received give the impression that this is something we are setting up in favour of multinationals in order to allow them to gain advantage over our State and our Government. It is a two-way street. What is proposed will give Irish exporters and Irish investors equal protection. Indeed, it also affords the Government and the State protection.

Circumstances change. We have seen already how the geopolitical landscape is changing on a daily basis, nowhere more so than in the area of trade. When the current American regime came into place, we thought that trade sanctions, tariffs, etc., were going to be a big issue for us. They have melted into obscurity in light of everything else that is happening. Never before have we, as a country, or our investors and our corporate entities that are gaining from this seen figures such as those to which the Minister referred. As he rightly stated, since the provisional application of CETA, bilateral trade in goods and services has increased from €3.26 billion to €10 billion. The value of Irish goods going to Canada has risen from €900 million in 2016 to €4.1 billion in 2024. The people who are exporting those goods need protection. It cannot be stressed enough that the protection is as much for them as it is for the corporates that will be bringing goods into Ireland.

This is in our national interests. Our economy is wide open. We saw the consequences of tariffs last year. We also saw the benefit of the consequences of the tariffs imposed by the USA on Canada and how the Canadians turned in this direction. CETA is only going to blossom. The only winners from it will be Irish agriculture and Irish export industries. That will be the case because of the weakened relationship between the USA and Canada and the tariffs that have been imposed. Anything that puts a barrier in the way of a trade deal involving a country that has an open export economy is ludicrous.

As I said at the outset, I support the proposed changes. They have come about on the basis of the recommendation, for what of a better word - Senator McDowell will have a better title for it - of the Supreme Court. However, the Supreme Court made its decision on a four-three basis. That is a tight game. There probably needs to be scrutiny. I am looking forward to going through the Bill in finer detail on the later Stages as it progresses through the House.

I welcome the Minister of State. I want to put on record my total opposition to the passage of this legislation. I believe it to be unnecessary, legally dishonest and potentially calamitous for Irish interests. As a preliminary point, I wish to state that I do not believe any Irish interest is served by our ratification of CETA. The free-trade elements of CETA have already been in operation for nine years. In that time, Irish exports to Canada have quadrupled and Canadian exports to Ireland have increased from €3 billion to €10 billion annually. What is at issue here is the loss of sovereignty in respect of the protection of investors via a court system which would have the capacity to overrule decisions of the Irish courts.

This Bill and the ratification of CETA are wholly unnecessary for the promotion of tariff-free trade between Ireland and Canada or, indeed, between Ireland and Chile. It is dishonest to suggest otherwise. When former Deputy Patrick Costello challenged the proposal to ratify CETA, I fully supported him. The Supreme Court, by majority, ruled that the proposed ratification was unconstitutional. Currently, 17 EU member states have ratified CETA, while ten, including Belgium, Bulgaria, Cyprus, France, Greece, Hungary, Ireland, Italy, Poland and Slovenia, have not.

The grossly offensive part of this Bill is that it seeks to permit Ireland to ratify a treaty on foot of a passage in one of the judgments of the Supreme Court, that of Mr. Justice Gerard Hogan, which commanded majority but not unanimous support in the Supreme Court, to the effect that the amendment of the Arbitration Act 2010 to permit the High Court to render any awards made by the arbitral court or by the appeal arbitral court provided for in CETA unenforceable if enforcing the award would compromise "the constitutional identity of the State or fundamental principles of our constitutional order" or "our obligation to give effect to EU law ... and to preserve its coherence and integrity". At paragraph 235 of the Hogan judgment, it is suggested that the Irish courts could render unenforceable any such decision which is "at odds in some material way with the legislative juridical autonomy of the State". Those grounds find some reflection, but not adequate reflection, in the proposed section 25A to be inserted in the Arbitration Act 2010.

This Bill is grossly defective, and probably deliberately so, in that the recasting of paragraph 235 of Mr. Justice Hogan's judgment is reduced to the following ground for unenforceability, namely that the award would compromise "the constitutional order of the State". That ground is utterly vague and unexplained. Does it mean, for instance, that a decision by the Oireachtas which affected any Canadian investment adversely by statute would always trump or defeat an arbitral court award under CETA? What is the constitutional order of the State? I believe that the Bill is fraudulent insofar as Ireland would, if it ratifies CETA, be bound by any subsequent decision of the European Court of Justice, ECJ, as to whether invocation by Ireland of its constitutional order was a permissible basis for non-implementation of an award. The folly of assuming that the Irish courts would be autonomous in such circumstance to determine such an issue and would not be subject to being overruled by the ECJ is obvious. Under Article 29 of the Constitution any ECJ ruling that Ireland might not invoke its constitutional order as grounds for non-enforcement of an arbitral award would be binding on the State and on the Supreme Court. If the ECJ decided this ground was not valid, we would have to surrender it. As Dr. Oisin Suttle of Maynooth University's department of law has observed, Ireland is subject to EU law in relation to its obligations under CETA. Only Canada or the EU as a whole can terminate CETA. In his words, "It is Ireland’s choice to be bound by the treaty but once bound, it will take the EU and its member states, acting together, to terminate it." Even if the treaty were terminated, obligations in relation to investors and being subject to the investment court system would remain in place for a further 20 years.

The fundamental problem with assuming that amending the Arbitration Act to permit non-enforcement on constitutional order grounds is that the ECJ would very likely rule against such a decision by the Irish court. Far from preserving Irish juridical sovereignty, the provisions of the new section 25A would render it extremely likely to be swept aside later at EU court level. Unfortunately, the safety valve proposed in Mr. Justice Hogan's judgment is probably worthless if disapproved of by the European Union and by its courts. Nor are we informed - and this is an important point - as to whether the reservation embodied in section 25A will be explicitly provided for in Ireland's ratification process, whether by means of some protocol or reservation.

I draw the Minister of State's attention to the minority judgment of Mr. Justice Charleton, at paragraphs 61 and 62, where he, very credibly, states that any suggestion that Ireland's invocation of section 25A would trump the decision of the arbitral courts is lacking in credibility. The likely outcome is that we would be told that this section is inoperable as a matter of European law. If it is not part of our ratification, section 25A is virtually worthless as a guarantor of Irish juridical sovereignty. I do not hear from the Minister of State or the Government any proposal whatsoever to add to Ireland's ratification of this treaty an exception protocol or reservation of the kind suggested by this amendment to the 2010 Act.

The Government proposes to subvert our constitutional independence with a rickety and threadbare circumvention of the pure meaning of CETA in order to permit Ireland to ratify CETA during its Presidency and to satisfy Canadian interests on the occasion of premier Mark Carney's forthcoming visit to Ireland. That is a disgraceful basis on which to legislate in haste without addressing the points that I am raising and the other grave and dangerous pitfalls implicit in this Bill that deserve to be carefully considered during further debate in this House. There are many reasons for this House to fulfil its function to carefully scrutinise this Bill and to avoid any guillotine being imposed in the context of its passage. I hope to return to those issues on subsequent Stages of this House's consideration of the legislation.

Globalisation has gone so far, but the defences against globalisation are the granular defences established by nation states in their constitutions. This Bill proposes to give investors in Canada and Ireland, but particularly Canadian investors, the right to tell Ireland what to do, even if our Legislature and Government differ from their views. This is an elevation of capital investment to an unnecessary height. It is conferring on it status on a pedestal, which is unnecessary.

The following point is hugely important. It is not in our interests to do this for the reason I am about to outline. It may well be that Canadian investors would suspect that the Bulgarian Supreme Court might do them down. It is perhaps credible that they would suspect that many of the European states are not to be trusted as guarantors of investors' rights. However, the point is that Ireland has an existing comparative advantage because the Canadians trust us and, as the Supreme Court stated, we trust them. We trust their courts; they should trust our courts. They should not in those circumstances seek to impose, in the interests of capital investment in Ireland, the right to have decisions foisted upon the Irish people against the wishes of the Irish Legislature.

The Minister of State is welcome. The Arbitration (Amendment) Bill is an important step towards enabling Ireland to ratify key trade agreements, including CETA and the EU-Chile agreement, as well as similar arrangements with partners such as Vietnam, Singapore and Mexico. Like Senator Daly, I am not going to go over all the information that the Minister of State gave. However, like everybody in this House, I have received a lot of correspondence in the past couple of days about this arrangement. What the Minister of State has reiterated is that the Bill does not ratify any of these arrangements. Ratification will proceed in line with constitutional requirements and will require further governmental and parliamentary approval. That is to acknowledge some of the points that have been made.

CETA has removed 98% of tariffs, lowered costs and boosted competitiveness for Irish exporters. Trade has grown, as we have said already, from €3.2 billion in 2016 to over €10 billion and has supported jobs across many key sectors. Full ratification would build on this by providing legal certainty, encouraging further investment and creating more opportunities, especially for our SMEs.

The Minister of State indicated that it cannot be argued successfully that we have secured the trade aspects of the agreement and, therefore, do not need to ratify the agreement in full. The status of our ratification is regularly raised bilaterally by Canada and the European Commission. The Minister of State has answered many of the questions that have been put to everybody in the past couple of days. Obviously, there will be ample opportunity, as we proceed through Committee and Report Stages, to go through this in further detail, but just to break this down, it is about keeping Ireland open, competitive and connected to our global markets. It enables Ireland to ratify modern EU trade agreements that support jobs, expand opportunities for Irish businesses, especially SMEs, and strengthen our position as a trusted trading partner. At a time of global uncertainty, backing rules-based trade sends a strong signal that Ireland is pro-European, pro-business and open for investment. Crucially, it does this by fully protecting the State's right to regulate in the public interest and ensuring a fair and transparent system for resolving disputes.

I first want to put on record how disappointing the Government's approach to this legislation has been so far. It is ramming through this legislation without any real opportunity for scrutiny. The Bill will have far-reaching implications if enacted, undermining the sovereignty of our courts, workers' rights and environmental protections. Yet, pre-legislative scrutiny was denied and the debate in the Dáil was guillotined without allowing for any discussion on many dozens of Opposition amendments. The Government is playing with fire with this legislation and it is extremely frustrating that it is unwilling to listen to any voice not sitting at the Cabinet table. Countless international authorities have highlighted that investor courts have considerable potential implications for the environment, workers' rights and fundamental sovereignty.

UN-appointed experts are saying that the investor state dispute settlement mechanism is beyond reform. It is being removed from the North American Free Trade Agreement, NAFTA, and other similar trade agreements because it is recognised that it inherently puts states and national governments at a disadvantage in disputes and unfairly allows corporations to bend states to their will. This Bill will take decisions that would otherwise be undertaken under the jurisdiction of an Irish court and places them with an international investor court over which we have no oversight or control. We have more than enough legislation already on our books for our courts to be empowered to mediate disputes between companies and the State in instances where a company or organisation believes that the State is unreasonably interfering with their ability to operate.

This legislation will create a problem where one does not exist and would further hollow out our democracy and popular sovereignty and take crucial decisions away from the people. There is zero benefit to the public in signing up to these investor courts. All the trade elements of CETA are already in effect. Trade is already happening. This is an attempt to legislate for corporate capture of our policy process. This Bill is not necessary to ensure that trade between Ireland and Canada can continue to grow. It is growing. It is important for our future economic prospects.

The issue with this Bill is not just about Canada, which is clearly a country we want to have a good relationship with and grow our economic partnership with. The issue is about opening the door to a system that would put multinational corporations in a position where they can dictate to the Irish people, which will almost certainly be to the detriment of democracy, our environment and society generally. It absolutely beggars belief that this Government is in such a rush to sign us up to these investor court mechanisms. This should not be allowed in any state that considers itself sovereign and independent.

As well as compromising our sovereignty, fully enacting this legislation and ratifying CETA will likely have a negative effect on public policy and decision-making, hanging the threat of corporate legal action over any attempt to stand up for workers or society at large.

Our courts system gives a more than fair hearing to big business. I would be very surprised if this Government sincerely believes our courts are not fair or fit for purpose. The absolute last thing this country needs is to hand even more power over to the multinationals that already seem to hold almost all the levers of power. Sinn Féin will continue to oppose CETA and I urge Government to give proper consideration to the Opposition amendments that will again be submitted at a later Stage.

Next is the Cross-Party Group. I understand Members are sharing time.

We are each taking two minutes, myself and Senators Cosgrove, Noonan and Harmon.

Is that agreed? Agreed.

During Dáil Committee Stage, the Minister of State acknowledged that trade with Canada has tripled since 2017 and that 99% of CETA is already implemented without the investor court provisions being enforced, and that he has received no complaints from any Canadian companies about the system not being in place. The Government has very much tried to frame this Bill as essential to the continuation of the trade tariff arrangement set out in CETA but this is simply not the case. As we know, nine EU member states also have not domestically ratified CETA and there is little evidence they are going to do so in the near future with any speed. A week ago, the Government belatedly notified Ireland's withdrawal from the Energy Charter Treaty. The EU withdrew last year on the basis that the ECT was not compatible with its climate goals, with companies suing member states for millions when they tried to move away from fossil fuel. The threat of such claims has a regulatory chilling effect on progressive policy and regulation at a time when that is needed more than ever. This is what the arbitration Bill will open us up to. It is incredibly ironic, inexplicable and utterly unacceptable that the Government is still proposing to advance this Bill in this context.

The arbitration Bill proposes to get around the protections afforded in our Constitution. It should give us all pause for thought that we would even be attempting to get around the protections afforded to us in our Constitution. The whole point of this Bill is an attempt to make the investor court system constitutional but the reality is that claims against Ireland can still be enforced outside of Ireland, regardless of the oversight that this Bill purports to provide Irish courts. The reality is that this amendment will not actually give Irish courts any say in tribunal awards from the investor court system.

We need to be very clear that this arbitration Bill is not only about CETA. As per section 25A, it can include any agreement prescribed by any Minister at any given stage in history, without Oireachtas approval. This is the last time Senators will have a say in this. I know someone else mentioned that ratification requires parliamentary approval. That is not true; it requires Dáil approval. This is our last opportunity to have meaningful debate on this. Pre-legislative scrutiny was waived. This is such a fundamental thing. It will last for 20 years, if we ever seek to withdraw from it. That is what is happening with the ECT. The Government is binding us and future generations.

No matter what way this is presented or dressed up, it could be the most damaging and dangerous Bill to pass through the Oireachtas, with far-reaching and long-lasting consequences. Of course the Labour Party supports trade and we know that trade between Ireland and Canada has gone up. We do not support investor courts, which we believe are completely unnecessary. These secret corporate courts allow corporations to sue Governments over laws that could impact profit, for example raising the minimum wage and protecting vital ecosystems. Investor courts give corporations a veto over policies designed to protect people's health, quality of life and the environment. These are not misconceptions. Ireland already has fair rules to protect investors. If these rules are good enough for us, why are they not good enough for multinational corporations? We are literally giving away elements of our sovereignty to unelected corporations.

Germany was sued for €3 billion by Swedish investors after changing its approach to use of nuclear energy. The Netherlands and Italy were sued under another energy trade agreement. Ireland has already been threatened by two oil and gas companies that claimed they were treated unfairly. This could impact future decisions to ban fracking or gold mining, which is a massive issue where I live in the north west. Imports of LNG from Canada to the EU are set to increase in future. Could we be sued if we refuse to take this filthy gas? Trócaire, Christian Aid and An Taisce, all extremely reputable companies, have warned us of their experience of investor courts in the global south, which have increasingly been used as a weapon by extractive fossil fuel companies.

In effect, this is the creation of a governing body outside of our Constitution which threatens our Republic and contradicts the principles of republicanism. Will we see a future governed by huge multinational corporations? How are we to defend Irish farmers and growers in the agricultural sector from poor work and environmental standards? What about the Mercosur trade agreement? This legislation was rushed through, including by Ministers in my own constituency in the north west, which is going to be massively affected.

The Cross-Party Group is not opposed to trade. We believe in and know what free trade has done for Ireland from the Lemass era right to the present day. It has to be as much about fair trade as it is about free trade, however. In a small open economy like Ireland's, this geopolitical reality that we are facing today is particularly alarming. We are opposed to this Bill and the measures in it, and the challenges it is going to present in terms of society, workers' rights and the environment. As has been said, it is not just about the agreement specified in the Bill, namely CETA and the EU-Chile agreement. It could be any Bill that a future Minister decides to include in it. What would happen if Ireland, probably on a road to Damascus moment, decided to ratify the fossil fuel non-proliferation treaty, or a rights to nature Bill that could be brought forward and which has been proposed? Would we be taken to investor courts by Exxon, BP or Shell? Trade can be used as a force for good in upholding the rule of law, climate and nature objectives, workers' rights and the rights of indigenous peoples. This arbitration Bill is not going to do that. As has been said, Ireland is not obliged to ratify CETA under the ISDS or ICS clauses in the EU trade agreements. This has been made clear by the EU Court of Justice and our own Supreme Court in the Costello case. Our Cross-Party Group remains resolutely opposed to this legislation.

This Bill is crazy. I really think the Government is selling the interests of the Irish people down the Swanee with this. As we have heard, the impact of it will affect future generation in terms of democracy, workers' rights and the environment. We have also heard of a potential impact in relation to housing in Ireland. For example, Canadian investment is already over-represented in our housing system. It is not difficult to imagine a situation where, one day, if we finally have a Government that invests properly in affordable housing so that rents begin to fall, an investment fund could sue the Irish State for letting rents come down. Are these the kind of loopholes we are allowing ourselves to be open to? The Government is saying that this Bill is about Ireland being open for investment. I would argue it is opening us up to being undermined or harmed. It is also opening up our democratic sovereignty.

The Labour Party has opposed this Bill at every Stage in the Dáil and here in the Seanad. We will be bringing forward further amendments with the Opposition here, not because we cannot see the benefits of trade. Of course we are pro-trade. We are pro-fair trade but we do not believe that this Bill contributes to that or that it gives a fair deal to the Irish people. We cannot overrule our Government, we cannot be overruling our legislators in relation to this. I saw the Minister of State roll his eyes as well.

The Senator said we were selling Ireland down the Swanee. I did roll my eyes, yes.

Yes, and I am putting that on the record because I have serious concerns about this, as do many members of the public. We have all got thousands of emails in relation to this. I take it very seriously that the public have concerns about this. I think there needs to be more awareness in relation to it. In fairness, Senator McDowell made the point so cogently. Senator Higgins has been arguing against this since its inception. It is really important that we raise more awareness about the damages this will have if it is fully implemented.

I first brought discussion on CETA and investor courts to the Seanad exactly a decade ago. It was my very first Private Member's business as a new Senator. A majority of Senators at that time had the courage to support me and the motion was successful. The concern we were raising in that motion was the fact that the trade component and these investor courts were separate and should not be considered together. We noted that a European Court of Justice ruling on the Singapore deal was pending and that Ireland should not be rushing ahead before it.

That Singapore ruling did happen and we were correct because that ruling decided and said - and this is why it is really important, we are not just saying we are getting away with the trade - the trade and investor court components are separate. Trade is an EU competency. The European Commission has been mandated by the different countries to negotiate and lead on it. That is why it can be very frustrating moving in these areas sometimes but the point is that is what we have agreed, and they move forward. The trade component can move forward but the investor court element, which is an issue that directly affects national sovereignty, has national implications and subsidiary implications that go beyond anything collectively for the European Union, must be decided and determined at national level. It is not simply that we did A and do not want to do B; it is that A and B are different. With A being trade, trade is already happening. It is already under way. Not only that, but when we look to the Government's own document on the future opportunities for trade with Canada, Beyond Barriers: Deepening Canada–Ireland Trade and Investment, we hear those are in areas where trade is already allowed and happening. There is no constraint in relation to any of those ambitions for increased trade, be with Canada, Chile or anywhere else but the investor court component is separate and is deeply consequential.

We need to be clear. The line was said in regard to protections. There is already protection. The Ministers and the Canadian ambassador have said it before: there is no example of Canadian companies failing to get proper justice in our Irish courts system. Are we saying that we do not trust Canadian courts after all the wonderful things we hear about? These are established. What those courts do is balance a whole set of rights. They look at the claim an investor is making and they balance it against environmental, human rights and case law and against the wider picture. They come up with a ruling that is balanced by all those aspects of the law. What arbitration courts do is solely consider whether a corporation can be afforded compensation, which includes future unearned profits that it might have made if it feels it has been unfairly treated in relation to a policy or if a policy unfairly impacts on it.

The implications of that have been seen globally, right across, with investor-state dispute mechanisms. Those same grounds are there, namely, fair and equitable. It is the same language that is in those investor dispute mechanisms that has led to the list of egregious rulings, with hundreds of millions and billions being made against states when corporations looked for compensation. In regard to unfair and unequal treatment, it sounds like we would not do that. Let us be clear by the kinds of things that are covered by that. They are covered by the provision "When applying the ... fair and equitable treatment obligation" - this is from the text of CETA - "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". It is not simply a matter of bringing in a rule that will apply to everybody and that we will be fine. I refer to us bringing in a rule where such a company gets to say we asked it to invest and again, the beyond barriers report is explicitly clear that what Canadian companies like is getting encouraged to invest. I have a list from a response to a parliamentary question of about 30 Canadian companies that have been encouraged to invest. The simple fact of that would give them a standing - which no Irish company would have, by the way - to say they want compensation on a rule.

What are the areas that are affected? The litany of cases we have seen in the past are in the environmental and public health areas and there is huge vulnerability in other unregulated and under-regulated areas, like home care and housing. These are areas where in many cases, the Government is failing people now and it wants to tie the hands of future Governments to say that they will not be able to respond and deliver for the public and the next generation if they wish to in these areas because when they do so, it will come with a huge threat. Yes, of course there is a right to regulate but what if that right to regulate comes with a massive compensation claim attached to it? Again, I quote Deputy Micheál Martin: "The smoking ban would never have been introduced had we been afraid of the threat of big tobacco coming after us legally." That was him giving out about the smoky coal ban where again, Varadkar was stalling, because of the Energy Charter Treaty, with regard to enacting it. The fact is, we would not have been exposed to big tobacco at that time. I wonder would he have brought the smoking ban in if big tobacco had been able to sue, as it has sued countries right across the world and fought tooth and nail against even the inclusion of warnings on cigarette packets under investor-state dispute settlement, ISDS.

I have some facts as well. This is not simply about the new investor court system which, by the way, is essentially the same. It is not a secret, although either party can ask that the reasons for judgment might not be revealed. It has the same operating mechanisms and, of course, companies do not have to go with the investor court system, ICS. They can choose to go under the old investment rules, or the ISDS rules. The legislation from the Minister does not say this is only going to be for the investor court systems; it could be for any dispute mechanisms that might be attached. That is what is there in subsection (5). We are wide open here to something that will massively compromise our ability to properly respond, and I should just say there is a dishonesty in the implication of, "Do not worry, we will not enforce it because of what the Constitution says". The point is, the Constitution says we have to abide by European law. By the way, arbitration bodies have been clear. They do not regard themselves as bound by European or international law. Mr. Justice Charleton was very clear that really, the Arbitration Act is a contradiction of CETA, so you would need a special protocol to the treaty. You would actually need the CETA treaty to state it recognises that sometimes Ireland will not implement the rulings. Otherwise, it is a pretend. Not only that but even if Ireland did not enforce the arbitration rulings, there are multiple other countries that can.

Again, it is very clear in the language that the ruling can be taken under the rules of whichever country it is filed in. For example, Spain decided not to pay in certain instances. They took a case against them in the UK and the UK said it was okay to seize Spanish assets in the UK. There are multiple examples where arbitration companies choose to file that the money they are owed by a state can be seized in another jurisdiction where that state has assets. It would not even work in relation to that, and we think of Ireland and our diplomatic assets we are so proud of right across the world.

Fundamentally, this is reckless. It is recklessness with the future. It is not balancing human rights against money; it is reckless financially. Senators feel they got a lot of emails about this issue. There is no monopoly on caring about issues, as every party and public representative cares about them. However, when they get emails in the future about any issue, what Senators do not want is to go back to those people who care about public health and who are writing to them about their concerns on public health, housing, the environment and any other issue and say, "Unfortunately, we have legal concerns that make it hard for us to do the right thing the public wants us to do". In regard to the things the public wants them to do in the future, Senators' hands will be tied by a completely unnecessary and entirely ridiculous decision to create hostages to fortune. Why are we doing this? I honestly think a nice photograph is not worth it if that is the goal, and if the Government wants its hands to be tied so it can respond more directly to corporate pressure, that is an even bigger problem.

Before I call on the next speaker, I welcome guests of Deputy Seán Ó Fearghaíl to the Gallery, as well as guests of the Minister, Deputy Darragh O'Brien. I thank them for being in the Seanad today.

I fully recognise the Government's democratic prerogative in bringing forward this legislation because it appears it is part of the programme for Government but, of course, there is no compulsion on the Government to pursue all of these things.

It would not be an unheard of happening that things in previous programmes for Government were not legislated for. As for the reservations I have about this as a layman listening to the debates and doing a little bit of background work into it, there are some things which are fundamentally disappointing and worrying. The first thing was what happened last July in the Oireachtas Joint Committee on Foreign Affairs and Trade, when there was a fit-up - the best way to describe it - between the Government main parties to not allow pre-legislative scrutiny of the legislation. The committee acting in that way did the whole democratic process in these Houses a serious disservice.

Disgraceful.

We are left with this debacle that is causing so much angst in this House because fundamentally, it was not given any sort of airing that it deserved because of the importance and gravity the implications therein contained. We hear it is going to be pro-business, pro-Europe and pro-investment and trade but from the Minister’s own figures - the quadrupling of trade in the incidence was one of the figures I caught going up from €3.4 billion to €12 billion over a short number of years - it does not seem there is a crying imperative for this legislation to be created.

Senator McDowell mentioned that there is of course mutual trust in the liberal democracies of the courts. His phrase was that we trust the Canadian courts and they trust ours. If that be the case, why are we going down this avenue of an unnecessary initiative to further complicate the issue and do something that is not in any way progressive? I wonder whether the whole concept of wanting to rush this through so that it can be a performative achievement during the Presidency, or that it might provide a comely photo op of the Taoiseach and the Prime Minister of Canada, Mr. Carney, erstwhile Irishman, is progressive democracy. It sounds more like a Government that is treading down a fairly craven path. I am happy to stand with the Senators who have spoken so trenchantly against this legislation. It seems to be unnecessary and is going to tie the hands of future governments. It is fundamentally anti-democratic because it takes the trust away from the court systems given constitutionally to our country.

The Arbitration (Amendment) Bill is an attempt to create a constitutional fix so that the Government can ratify CETA. I am genuinely perplexed that the Government is trying to push a deal that would leave Ireland under the thumb of international corporations and with the threat of legal action hanging our heads. If the CETA deal is ratified, we will be within a corporate court system which will mean big companies could sue Ireland for lack of profits. This looming threat of legal action hanging over us would be unhealthy for our democracy. It is absolute madness that the Government would hand away the freedom to legislate for the public good.

At first glance, CETA seems to be terminable by notice, but while Ireland would be a party to this treaty, it would not be the party that could terminate. That would only be Canada or the EU as a whole. We can choose not to ratify CETA but once we ratify it, there is no backing out and that is very concerning. The only way for us to exit this treaty would be to leave the European Union. At a time of global instability, a cost-of-living crisis and billions in climate fines looming, should we really be taking further legal and financial risk?

The real problem here is the chilling effect this will have on our Government whenever a foreign company threatens to bring a case to the CETA tribunal for when we propose a policy it does not like. If we try to limit the profitability of companies or even do so inadvertently through regulating the sale of certain products or fuels or even in terms of rent control pressures, could vulture funds then sue Ireland in response? I want that question answered.

Let us look at the recent ruling from the ECJ, when it awarded damages to asylum seekers because of the State’s failure to provide suitable accommodation. It seems more and more that rather than simply being a part of the European Union, we are being governed by it entirely. We are leaving ourselves in a situation where Irish law has little meaning if it can simply be superseded by EU law. We all support attempts to further trade and deepen ties with trade partners but not at such a reckless and high risk to the State.

Gabhaim buíochas leis na Seanadóirí as na dtuairimí a chur siad roimh an tSeanaid anocht.

I again remind people that the ultimate reason we are doing this is to put Ireland in a position where we can ratify various trade agreements. That is a separate process. Free and open trade has been at the heart of the Irish economy for decades. Multilateral agreements have been at the heart of Irish society and Irish life for decades, and the compromises that result from multilateral agreements have been at the heart of our economy, society and legal system for decades and are in fact a feature of any sovereign, independent State. We shifted our trade policy from protectionism toward an outward-looking, free trade approach and lifted millions of Irish people out of poverty by supporting job growth and investment. Since joining the European Economic Community, EEC, as it was called in 1973, Ireland has emerged as one of the biggest investors and recipients of foreign direct investment worldwide. This has been transformational and a critical source of capital for developing new industries and innovative technologies at home and abroad, and now Irish companies are also investing around the world. We are in the top ten investors in Canada and in the USA. We promote this investment. We want an environment that is attractive, resilient and competitive for foreign investment in order that we can create jobs. This economic model has created hundreds of thousands of jobs for our people and raised our quality of life in standards and wages. It is an economic model we must protect and allow to grow.

Ratifying CETA is a priority for the Government. The Government is committed to its ratification and supporting and working with Commissioner Maroš Šefčovič to support an ambitious EU trade agreement promoting new free trade agreements. In order to ratify this CETA agreement and the Chile agreement, an amendment to the Arbitration Act is necessary. We cannot take our economic success for granted. We must diversify our trading partners and do agreements and compromises with other countries in order that we may grow and create jobs and opportunities for all of our people. On our behalf, the European Union, which we are a part of, operates one of the most extensive trade networks on the globe with more than 40 countries, including Asian-Pacific regions and regions in the western world, all promoting a system of rules dedicated to open and fair competition. Our trade and investment and people to people relationships with Canada are deep, growing relationships resulting directly in huge employment. Our trade with Chile is more modest but it is growing and we can do more in relation to this.

The Eu’s new investment protection chapters provide a robust legal framework that has been examined, verified, studied, interpreted and agreed by EU member states, the Council and the European Parliament. This is European democracy; we are the European Union. The investment protection provisions liberalise market access, simplify administrative procedures and encourage reciprocal investment. They do nothing in relation to the scare stories the Opposition is putting forward. Companies investing in Ireland want assurance. Irish companies want assurance when they go abroad. The investment protection provisions include the principals of non-discrimination, fair and equitable treatment and compensation in case of expropriation.

They do absolutely nothing to affect a state's ability to regulate. The approach of the Government in bringing forward the legislation has been questioned by many Senators. As Senators are aware, in the Costello case, the Supreme Court not only identified constitutional concerns that prevented the ratification of CETA as Irish law then stood, it also identified a legislative path for curing the very concerns that had been identified. We have a Supreme Court decision that told us that if we wished, if it was within our prerogative as an Oireachtas or a Government, we could cure the constitutional concerns by amending the arbitration act.

No, it said you "may".

We could, we may. There was no instruction.

It is not the same thing.

I never suggested there was an instruction. It was a decision of the Oireachtas.

It is also only a possibility.

The Minister of State without interruption, please.

It is one we put in the programme for Government that we wanted to do. The Government has very carefully considered the decision of the Supreme Court in the Costello case. Unlike the Opposition, we have not picked and chosen certain paragraphs of the decision we like or do not like. Mr. Justice Hogan's recommendations and suggestion were endorsed by the Supreme Court. Let us not start this American system of four, three, six, one; six of the judges endorsed that. One did not and that judge was highlighted by Senator McDowell but six of the Supreme Court judges agreed with Mr. Justice Hogan. The Government now in putting this Bill forward is addressing what the Supreme Court suggested and addressing its findings in order to ensure Irish law may enable Ireland's ratification of these EU trade and investment agreements.

A number of issues have been raised by Senators. One relates to the right to regulate. I have to call out Senator Sarah O'Reilly's suggestion that there is some route for a company to sue for lack or profits. I suggest that Senators who make these statements and claims of misinformation in the Seanad read the treaty. The treaty states in CETA Article 8.9(2):

For greater certainty, the mere fact that a Party regulates, including through a modification to its laws, in a manner which negatively affects an investment or interferes with an investor's expectations, including its expectations of profits, does not amount to a breach of an obligation under this Section.

The agreements include Articles which affirm that parties and governments preserve their right to regulate for public policy purposes. They also provide that investment protection provisions shall not be interpreted as a commitment from governments that their legal frameworks will remain unchanged. It does not tell the Oireachtas it cannot change the law for public benefit. The agreements further clarify that the fact a measure may negatively affect an investment or investor's expectation of profits is not sufficient to say the measure is inconsistent with the agreements. I draw the attention of the Seanad to the commitment to preserving the right to regulate is reflected not only in the substantive articles addressing the issue but also in the preamble to the agreements, in the general treaty structure and, to address concerns with CETA, a joint interpretative instrument was drafted.

How was it unconstitutional if all that is true?

The Minister of State, without interruption.

The court did not decide on the right to regulate, in fact-----

It decided that to ratify CETA as the Minister of State was reading it was unconstitutional.

The Minister of State without interruption.

-----Ms Justice Dunne completely expressed the issue-----

Senator McDowell.

They decided the document before them could not be ratified.

Senator McDowell. The Minister of State, without interruption.

Ms Justice Dunne said straight away there was no issue of regulatory chill. Other judges said it was not a matter for the court.

Where was the constitutional problem?

The joint interpretative instruments states:

CETA preserves the ability of the European Union and its Member States and Canada to adopt and apply their own laws and regulations that regulate economic activity in the public interest, to achieve legitimate public policy objectives such as the protection and promotion of public health, social services, public education, safety, the environment, public morals, social or consumer protection, privacy and data protection and the promotion and protection of cultural diversity.

In other words, the joint interpretative statement categorically contradicts all of the allegations that have been made.

Where was it unconstitutional?

It states "fair and equitable treatment"-----

Why was it unconstitutional if you are right?

Senator McDowell knows right well that the unconstitutionality did not relate to the right to regulate.

A point of clarification.

I agree with the Minister of State. I am asking why-----

There is no such thing as a point of clarification.

We were just told-----

That is for Committee Stage.

References were made to suggest that our points had been contradicted by what had been read. Our points were very clear-----

Senator, please.

-----this is not around the right to regulate, it is the fact that the compensation which may be accorded if companies say they are being unfairly treated-----

Senator, you had an opportunity to make all your points during the debate.

It was specifically said.

You are aware the Minister of State is supposed to speak without interruption.

I am but there was a direct reference to comments we made.

I am very happy to answer all these questions and discuss all these matters on Committee Stage.

I am looking forward to it.

The Minister of State will do that.

There was no suggestion the smoky coal ban was the victim of some international treaty because it is in force, as brought in under the previous Government. A lot is going on. I read the email that has been circulated this evening. It certainly does not relate to the reality of what is in the EU-Canada Comprehensive Economic and Trade Agreement. There is no reality to that. Each state's right to regulate is expressly provided for in the treaty and the various documents. I look forward to taking this to Committee Stage. We will have a very full debate on Committee Stage.

No guillotine.

I am committed to a full debate on Committee Stage but it is a priority for the democratically elected Government-----

It is a priority for the guillotine.

Senators, please. Let the Minister of State finish.

It is a fact that it is a priority for the democratically elected Government of this State directly elected by the people-----

Therefore the guillotine-----

Senator McDowell, please.

I have not made any such suggestion.

I know.

I have directly contradicted all of the allegations made by the Opposition in this case. I will do so-----

Rubbish.

Factually incorrect.

I will happily do so and try to persuade them of where they have gone wrong. Clearly things went wrong before, the Supreme Court declared that and gave a pathway. We are doing our utmost to comply with the advice or suggestions of the Supreme Court with this Arbitration (Amendment) Bill to allow us in Dáil Éireann to ratify the CETA trade agreement.

I will make one more point on if we were to decide not to ratify. This is the big question. The Senator said it does not matter if we do not ratify. If we did not, we would be obliged to formally notify this to the General Secretariat of the Council of European Union prior to any action being required on the part of Commission. The question of discontinuing the provisional application of the agreement in such circumstances would then have to be considered at EU level following the usual EU procedures and provision of the agreement in question. That is a fact. I look forward to Committee Stage.

When is it proposed to sit again?

At 9.30 a.m. tomorrow morning.

Is that agreed? Agreed.