This meeting has been convened to consider Committee Stage of the Arbitration (Amendment) Bill 2025. I welcome the Minister of State, Deputy Thomas Byrne, and his officials.

I advise members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex in order to participate in public meetings. I will not permit members to participate if they are not adhering to this constitutional requirement. Therefore, a member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I ask any member taking part via Microsoft Teams to confirm, prior to making their contribution, that they are on the grounds of the Leinster House campus. It is important to note that in order to participate in a division in committee, members must be physically present in the committee room. In other words, they cannot vote from a remote location.

Members are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

Does the Minister of State wish to make any opening comments on the Bill?

Ba mhaith liom roinnt nóiméad a thógáil chun a thaispeáint do chomhaltaí cad atá ag tarlú agus cad atáimid ag iarraidh a bhaint amach leis an mBille seo. The Arbitration (Amendment) Bill 2025 is necessary to allow the State to ratify international agreements containing investment dispute resolution provisions under the so-called investment protection regime, including agreements such as the Comprehensive Economic and Trade Agreement, CETA, and the EU-Chile Advanced Framework Agreement. It gives effect to the findings of the Supreme Court in the Costello case by introducing a procedure in Irish law for the enforcement of awards rendered by tribunals established under CETA and similar agreements, which addresses the concerns identified by the Supreme Court and specifies grounds on which such awards may not be enforced.

On Second Stage, Deputies raised objections to both this Bill and to the investment court system, provided for in the relevant international agreements, more generally. The investment court system is not the same as the long-standing investor state dispute settlement, ISDS, system, which has given rise to some of the cases cited by colleagues. It introduces a fundamentally different model, developed by the EU to address concerns, including regarding transparency, independence, consistency and the regulatory chill that arose under earlier ISDS and ad hoc arbitration systems. Claims were also made that the Bill undermines sovereignty, bypasses the Costello judgment or requires a referendum. I am quite clear that these claims are incorrect.

It is equally important to emphasise that the right of the State to regulate in the public interest is fully preserved. At a time when the global trading environment is increasingly volatile, it is essential that Ireland, as a small open economy, can look outward to new markets and opportunities. The ability to ratify mixed agreements containing clauses of the kind in question, such as CETA, is central to that objective. The Bill is an essential enabling step in that process.

I look forward to engaging with Deputies on the individual sections of the Bill.

I thank the Minister.

Amendments Nos. 1 to 6, inclusive, have been ruled out of the order as they are in conflict with the principle of the Bill.

Amendments Nos. 7, 8, 10 and 11 are related and may be discussed together. Amendment No. 11 is a physical alternative to amendment No. 10.

I move amendment No. 7:

In page 4, to delete lines 3 to 13.

It must be said, given that this is my first opportunity to contribute to the Committee Stage debate, that it is totally unsatisfactory that there was no pre-legislative scrutiny of this Bill and that no expert witnesses briefed the committee. This Government and that which preceded it have tried to ram this Bill through as quickly as possible. Under the previous Government, there was a two-hour debate. The current Government skipped pre-legislative scrutiny. We called a vote and lost. I commend Lynn Boylan MEP on hosting a briefing in respect of this legislation before Christmas that would have been worthy of any committee. I cannot remember the exact date, but the briefing involved witnesses we should have heard from.

I tabled this amendment to allow us to consider whether what is proposed in section 4(2) is compatible with agreements such as CETA. It creates a further false expectation of constitutional protection and of the autonomy of the EU legal order. Most importantly, it fails to recognise that claims will simply be enforced elsewhere. Essentially, Article 29.4.4°, 4.5° and 4.6° of the Constitution set at naught all our constitutional protections in light of EU legal obligations. If a deal like CETA is ratified by Ireland and all other EU member states, it becomes part of EU law. As a result, the possibility of relying on our constitutional protections suddenly evaporates. Section 4(2) proposes that we lean on a constitutional support which, in essence, will not be there, so it does not make sense. The reality is that investors will simply step outside this jurisdiction and will not even bother arguing whether there are any legitimate limitations as to the enforceability of their claims. As a result, this amendment proposes the deletion of section 4(2).

I appreciate the committee facilitating my being here at the last minute. Since amendments Nos. 7, 8, 10 and 11 are grouped, I will not address any of them individually. A concern has been expressed, as Deputy Duncan Smith outlined. I also commend my colleague, Lynn Boylan MEP, on the work she has done in respect of this and on the effort she made, in conjunction with others, to shine a light on the impact of this legislation. The Government has the attitude that this Bill will probably change absolutely nothing, but it would not be ramming it through if it were not going to change anything.

The concerns relating to this matter involve the capacity of the State to fulfil its obligations under, for example, the Aarhus Convention, the International Covenant on Economic, Social and Cultural Rights and various others. The concern is that we are giving up the capacity to adhere to these conventions and to fulfil our obligations under them. The amendments are grouped because they are about the same thing.

I am not a member of this committee, but I have been in the House long enough to know that bypassing pre-legislative scrutiny, unless there is a flashing-blue-light emergency reason for it, is never a good idea. The fact that it was bypassed in this instance has deprived committee members and the public of an opportunity to have a full and frank debate and to air the concerns that exist outside this room as well as inside it.

I echo the comments to the effect that it is unfortunate that pre-legislative scrutiny of this Bill was waived. We have seen the implications of adopting this legislation in other jurisdictions and the incredible threat to sovereignty and national wealth it presents as a result of things being handed over and by means of the building of parallel legal system to allow corporate entities to hamper our ability to legislate and uphold the standards we, as Irish and European citizens, all hold dear.

In the context of these amendments, I would particularly look to replace the current declaratory compromise clause with an operational mandatory refusal regime. As it stands, amendment No. 10 does not deal with Mr. Justice Hogan's concerns about unconstitutionality on which he ruled. Subsection (3C) of the amendment would convert the leave step from a mere formality to a requirement for a substantive determination in order that refusal is real and not illusory. Mr. Justice Hogan's concern was that enforcement is almost automatic and the High Court has little option but to give effect "in the absence of some highly unusual defence such as fraud". As this Bill currently retains the basic structure enforceable by leave of the High Court in the same manner as a judgment, subject only to the current declaratory subsection (3), it must be amended to provide for a procedure where the court must actually decide the refusal question.

Amendment No. 11 seeks to expand the compatibility list concerning awards that are not and never were enforceable in the State to include the Paris Agreement, the sustainable development goals, the Convention on Biological Diversity, the Aarhus Convention, the International Covenant on Economic, Social and Cultural Rights and conventions of the International Labour Organization. Awards made by investor courts could undermine action to fulfil our obligations under these conventions, which the State is a party to and which it is obliged to uphold.

This is part of a European-wide agenda to push for deregulation and a race to the bottom regarding standards. These are all conventions and treaties we want to adhere to, which we have signed up to and which we wish to pursue, not just as one member nation, but in solidarity with nation states across the globe. Making sure these are not lost is absolutely crucial. Unfortunately, this legislation tramples all over the right of nation states to uphold them for fear of future lost earnings of corporate entities. I cannot believe that something of such sovereign importance is not being subjected to more due diligence on the part of the Oireachtas.

I share the views expressed about pre-legislative scrutiny. It is vital and should only be avoided in circumstances where there is an exceptional need. This legislation has been in gestation for a long time and people have been expressing all sorts of reservations and concerns about it. Therefore, I invite the Minister of State to address that concern about the abandonment, or the request that was subsequently agreed for us to abandon, pre-legislative scrutiny. Why was it appropriate in these circumstances?

That is probably a good point to start with. Ultimately, the decision was taken by the Dáil to waive pre-legislative scrutiny. We have seen developments in international trade, in particular in the past year or so, happen at a quick pace. Deputies on all sides of the House have looked for answers on trade and the certainty we have about it. We grappled with a huge sense of uncertainty last year and, now more than ever, we have to double down on ratifying trade and investment agreements, not with just anyone, but with trusted partners like Canada who share our values and many of the values expressed in the international conventions people have mentioned, including the Paris Agreement, for example. It is right the Government took action, not just internationally, but at home, because it protects and creates jobs.

That is why we are here today. It matters to Irish people and their jobs that we continue to develop trade and investment links.

As everybody knows, the purpose of the Bill is to amend the Arbitration Act. That will then give the Government the necessary procedural safeguards, as outlined in the Costello decision that will be discussed throughout this meeting, in order to allow the ratification of CETA.

CETA is a trade agreement with Canada. Ireland enjoys very strong political, economic and cultural ties with Canada. It is a like-minded country with a like-minded government. It is a country with an incredibly high reputation for, I would say, being one of the good guys. The Canadians uphold climate action and the multilateral world order. Canada has excellent public healthcare and education systems. Some 4.5 million Canadians, which is more than 10% of the population, claim Irish ancestry. The Taoiseach was in Ottawa in September and invited the Prime Minister to come to Ireland. Of course, the Prime Minister has been in Ireland quite a number of times. He had to renounce his Irish citizenship in order to become Prime Minister of his country, or doing so was certainly seen as politically important. Canada is a key export market for Ireland.

CETA is already in effect. These provisions are not in effect but the trade arrangements are. What has happened since they came into effect in 2017? Trade with Canada increased from €3.2 billion in 2016 to more than €10 billion in 2023. That supports thousands of jobs and benefits large and small businesses right across the country. We launched a report recently on deepening trade between Ireland and Canada. Canadian companies employ more than 22,000 people in Ireland, and Irish companies employ more than 19,000 people in Canada. There is huge potential to increase trade even further. Canada and Ireland are like-minded and friendly. They look after their people as best they can in their democracies and have made known their desire to leverage opportunities to diversify their export markets. Canada spoke very prominently recently of trying to diversify trade away from the US. This will be a key part of its strategy and, I would say, a key part of our strategy for economic growth.

When we joined the EU, we had complete trade dependency on Britain, and 1 million people were working in the economy. Since we joined the EU, not only have we expanded our trade to the other member states, we have also expanded to countries around the world, including Canada. That has resulted in employment in this country going up from 1 million in 1973 to 2.6 million or 2.7 million now. There has been a transformation in the economy.

I will now speak to the amendments. It is important to respond to Deputy Ó Fearghaíl. The decision on pre-legislative scrutiny was made by the Dáil, given the context in which we find ourselves. The Costello judgment has prevented the ratification of CETA, although it is in force provisionally in terms of the trade arrangements and for other mixed trade agreements that contain similar provisions. The Supreme Court not only identified constitutional concerns, but the majority of justices also identified a legislative path for curing the concerns that had been identified. The Government has carefully considered what the Supreme Court said. This legislation is the response to what the Supreme Court found. The Bill amends the Arbitration Act and introduces a procedure in Irish law for the enforcement of awards rendered by tribunals established under CETA and under other similar international agreements, thereby, addressing the concerns of the Supreme Court.

If we were to accept amendment No. 7, we could not meet the concerns of the Supreme Court. If the amendment were accepted, it would delete the new procedure. For that reason, we cannot agree to it because that procedure is fundamental.

On amendment No. 8, as I said, the Government has carefully considered the Supreme Court's finding. This Bill is our response. It includes the specification of the applicable grounds upon which an award may not be enforced. The amendment is a consequential amendment premised on the acceptance of the proposed amendment No. 10. As the Government is not accepting amendment No. 10, we could not agree to amendment No. 8.

Amendment No. 10 seeks to provide a partial definition of the meaning of the constitutional order of the State, while, very intentionally, the Bill does not include such a definition. Furthermore, the interaction between the different sections of the proposed amendment, as well as amendment No. 8, is likely to be confusing. The term “constitutional order” has been referenced by Irish courts in case law, and will be a matter for determination in the usual way by the High Court or Supreme Court in any cases arising here. As stated previously, the majority in the Costello case identified a way forward, that is, the legislative path, which is what we are doing now. Again, if we were to allow the law to be overly prescriptive, it would make the legislation unworkable. As a result, we cannot agree to this.

We do not share the views of some of the Opposition in regard to CETA and similar international agreements. That is the reality. It is also the reality that we do not have the same concerns about how the Irish courts might interpret the new provisions set out in the legislation.

Amendment No. 11 refers to the grounds upon which an award may not be enforced. The proposed amendment would add to these grounds in a way for which there is no provision in CETA or the Chile agreement. We would say that it is completely unnecessary. There is no question of the State not meeting its obligations under the agreements referenced in amendment No. 11. Canada is also party some of those agreements. Some of the agreements are directly applicable EU law, which, under our Constitution, is supreme above all other laws. The Aarhus Convention is another international agreement, but that has been implemented by EU law. Many laws of the European Union, which have primacy in this State, implement the Aarhus Convention. The idea that an investor court system, under the CETA trade agreement, would somehow override these provisions is simply not in any way imaginable. There is no question of the State not meeting its obligations. The State is absolutely committed to meeting its obligations under international law and also EU law. I have no doubt that the same applies to Canada and its arrangements.

Even if someone did not agree with what I am saying, and instead said that, no, this would affect it, the language would add to what has been suggested to us. We have tried to work with the Office of the Attorney General to address Mr. Justice Gerard Hogan's concerns in the Costello case. This amendment would add to all of that and therefore give rise to a serious risk. In any event, I do not think the premise upon which amendment No. 11 is proffered is in any way rational.

The Minister of State referred to upholding the terms of the Paris Agreement, the Agenda for Sustainable Development and the other agreements listed in amendment No. 11. He said it is unimaginable that they would not be adhered to. Would it be impossible?

Certainly.

Would it be illegal and impossible for them not to be adhered to?

I would give the example of the Aarhus Convention-----

I will finish, if I may. As I said, I am substituting for my colleague. I did not have a chance to get a substantial briefing on the Bill. What I know, from the work of Lynn Boylan MEP, Deputy Donnchadh Ó Laoghaire and others, is that these amendments have come following a lengthy period of discussion with people who are outside of the Oireachtas but very involved in international trade and human rights. They have concerns. According to the Minister of State, their concerns have absolutely no basis whatsoever. It is not just unimaginable, which I think was the word he used, but impossible. Is that right?

First, our objective is to implement the CETA agreement. If we were to accept this amendment, it would go beyond what the Supreme Court helpfully provided to the Oireachtas to enable us to implement this agreement. We want CETA implemented. We do not share the concerns that the Opposition has. I do not accept that there are any concerns around these issues. Some of them are law, and some are not law. Straight off the bat, I can point to the Aarhus Convention, all of which is European law. There is absolutely no way that an investor tribunal could somehow override these.

I should also say that this agreement has been operated on a provisional basis in relation to the trade provisions for the past ten years or so. I have not heard any complaints from Canadian companies about what the Irish Government is doing to them in this country. This is all here.

In fact, they have moved on from these investor protection clauses in other agreements, but that is all set out here. The reality is that the possibility of any of this coming before an investor protection system in any substantive way is very remote.

However, it is not impossible.

The Irish State is a democracy founded on the rule of law. It is clear under CETA that we are allowed to implement our own public policy choices in this country, as is Canada. If our country were somehow to turn into a dictatorship and people's assets were to be taken over without any rule-of-law provisions, then some of this stuff might come into play and Irish companies would for sure need it in certain countries. However, the prospect of this coming in between Canada and Ireland is extremely remote. We have to provide for it and, if we want to implement this, we must follow the legislative suggestions from the Supreme Court, but I do not see any reality to any of this. There has been a long campaign against CETA but the reality is the agreement has created thousands of jobs in this country and I have no doubt it will continue to do so.

Those jobs were created before this legislation was brought forward.

They were created because the trade provisions of CETA have been implemented provisionally before ratification of the overall agreement. This part of the agreement has not been implemented because there was a constitutional case. Many of the Deputy's constituents work in jobs that are facilitated by this trade agreement and, by God, we need more trade agreements to ensure we can continue to manufacture goods and provide services the rest of the world wants and to ensure our economic future. The interactions companies have had with Canada and that Canadian companies have had with Ireland in recent years have been almost entirely positive.

The Minister of State has outlined a hugely beneficial trading relationship with Canada, which is something nobody in the Opposition is denying. All of those trade benefits are already in place. CETA is a mixed agreement. The investor courts are separate because they have huge financial and policy implications. Full ratification, as has been described, does little beyond what has already been done. It is hugely important for committee members to be aware of that.

All we are doing in establishing the investor courts is handing over Government or State control of our assets and sovereignty to a parallel legal system. The Minister of State talked about how we are a democracy established under rule of law. Why then are we creating a separate legal system? That is my concern. He also referred to Canada as being one of the good guys. I appreciate that Canada has many attributes we all admire and aspire to in various ways. However, the way in which it has supported the investor courts, which primarily have been vultures on countries in less advantageous situations than ours, has been shocking. Canada is not always the good guy, particularly on this issue.

Regarding amendments Nos. 8 and 10, it is not in any way overly prescriptive to give the courts more than a rubber-stamping role. The amendments simply seek to meet the minimum set out in the Costello case. I take this opportunity to thank Patrick Costello for bringing that case. I also thank Lynn Boylan, MEP, who has been absolutely incredible in advancing this matter.

Deputy Gibney referred to the Minister of State's comment that Canada is one of the good guys, which, in many ways, it can be. However, there are two big economic powerhouses driving Canada's view on this agreement. One is its mining industry. He mentioned that Canada is fantastic on climate. In fact, the country has one of the largest open-cast mining industries in the world, which creates huge issues in terms of the impact on climate. The second actor driving this is Canada's financial services sector and particularly its pension funds, which have huge investments all over the world, including in Ireland's housing and real estate system.

The Minister of State, in essence, is asking us to take a punt that the investor courts will not be used. He is saying the possibility is entirely remote because both Ireland and Canada are progressive modern democracies. The implication is the courts will only be invoked by a more powerful state against a weaker state that has some issues in terms of democracy. The reality, however, is that if a different government here brought in some effective public housing policies that reduce rents and put a proper housing system in place, it could financially disadvantage Canadian pension funds that are invested in the current system, which benefits institutional landlords charging high rents. This is not about a move away from democracy; it is relevant if there were the type of change in policies advanced by many parties currently in opposition but which could form part of a future government.

Is the Minister of State saying with full confidence that these investor courts will never be used? Does he consider it a risk worth taking? He is asking us to take a lot for granted. This is not about Ireland turning into some tin-pot dictatorship. We are talking about a change of policy in a modern democracy. That could quite realistically happen, and I hope it does. Such a change would financially disadvantage Canadian pension funds and investment funds. Under the provisions of this amendment to the Arbitration Act, they could take the State to court because they are losing money from friends. Does the Minister of State not agree this is a very real potential consequence of these provisions?

The simple answer to that question is "No". The agreements we have, including CETA, have provisions that affirm that the parties 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 remain unchanged. Canadian pension funds come in and buy property here to the extent that they are allowed to invest in property. We have our own rules on property investment by multiple-ownership investors. We can never give a commitment to anyone that our policies will remain unchanged. That will depend on the policy of the government of the day, with new governments replacing predecessors as part of the democratic process. There is further clarity in that the fact a measure may negatively affect an investment or affect expectations of profit is not sufficient to say that measure is not consistent with the agreement.

The commitment to preserving the right to regulate is reflected not only in substantive articles addressing the issue but also in the preamble to the agreements and the general treaty structure. In CETA, we also have the joint interpretative instrument, which 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.

CETA also clearly defines indirect expropriation, specifying that non-discriminatory measures to attain legitimate policy goals, such as in respect of labour, health and the environment, are not deemed to be indirect expropriation. If this is the type of policy measure the Deputy has in mind, it is specifically provided that such a measure would not amount to expropriation unless it is manifestly disproportionate. If an Irish government were to say it is going to seize all the houses owned by Canadian pension funds at a price of half their value but would not touch any other properties, those funds might have a claim in an arbitration court or even in the Irish courts under Irish law.

That is what we are talking about. We are not talking about the types of scenarios outlined this afternoon whereby a government comes in and changes the general law in the interests of public policy and that, somehow, this would lead to a claim from a Canadian company. The provisions are set out really clearly. Article 8.9.2 of CETA provides that "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". There are clearly defined investment protection standards and, in addition, clearly defined public policy standards.

This is not giving some extra claim to a Canadian company. It is not taking away power from the Irish State or, indeed, any EU member state, the EU itself or the Canadian Government. There has been a huge amount of scaremongering in this regard. The joint interpretative instrument further states that the EU, its member states and Canada are committed to monitoring the operation of all the investment rules and to addressing any shortcomings that might emerge.

If something the Opposition is talking about were to emerge, the agreement says that we would look at that if it ever were to happen. It is not the intention of the parties to allow that to happen. That is the reality. This has been covered off so much.

There is another important question because everyone says this is great, and it is great. The trade arrangements are fantastic but those are the trade arrangements and this is totally separate. The reality is that it is not totally separate. It might be a mixed agreement but it is one agreement and there are provisions to be ratified at national level and at European level as well. If an EU member state were to definitively decide not to go ahead with the ratification of such an agreement as CETA, which is a mixed trade agreement, we would have to contact the EU, first of all. We would probably have to check what we would do next. The question of discontinuing the provisional application, in other words the tariffs, in such circumstances would have to be considered at EU level, following the usual procedures. This is not something we want to do. We want to continue with this. The idea we can take one part - the good part - and not go ahead with the other part - which I think is fine; I think it is a good part, not a bad part - is not correct. The discontinuance of the agreement would eventually have to be considered at EU level. There is no question about that.

Does the Deputy want to press the amendment?

There are two points I wish to raise. I set out a pretty mild example and the Minister of State said that would not happen and then he said that if the State comes in and nationalises private buildings and apartment blocks or whatever, that could end up going-----

Owned by Canadians, not by Irish people.

Owned by Canadians. Yes, if the State nationalised-----

Possibly.

Possibly. Then the Minister of State said it is clear, but it is not clear where the line is. The Bill does not actually say that if the State nationalises X the Canadian investors can come in. It does not actually state that, so it is not as clear as the Minister of State is projecting. This is not about taking the good and not taking the bad but Ireland does have a history, including very recently, of going to EU and saying, "We do not agree with that". Most recently the State did that in terms of the nitrates derogation. There is a long list of instances of Ireland telling the EU that it does not agree with a particular matter or has an issue with it. I am not saying that approach is necessarily right all of the time.

Finally, Canada itself has taken this out of the renegotiated NAFTA agreement. There is no third party disputes mechanism in that renegotiated agreement, so why does Canada have one with the EU?

The Minister of State said the Opposition only wants the good parts and then he tried to correct himself and say there are no good and bad parts and it is all good parts, but does he see how using language like that makes people very nervous? Likewise, his use of very extreme examples is not very helpful. As he said, this agreement is all but in place at the moment. As Deputy Smith pointed out, other trade agreements have taken out these investor courts and that seems to be the more modern approach. It does not exactly instil confidence to hear the Minister of State use phrases like, "You only want the good parts," and for him to then say, "Well actually there are no bad parts and they are all good parts". That does not exactly fill people with confidence. The more salient point is the one around these investor courts being taken out of newer renegotiated agreements and that by not doing this we could be future-proofing the agreement.

If we do not ratify the agreement, the agreement will not happen and it is quite possible the tariff arrangements would be reversed. That is the legal position. It is the case that subsequent trade agreements - NAFTA is not a matter for us - at EU level have changed the procedures. There is no question about that. Quite frankly, this debate, though it is theoretical as I see it, has taken up a lot of time in a lot of countries. Some people are not satisfied with the economic order we have and some people want to use all sorts of reasons to counteract the international trading system we have. Some people are philosophically opposed to that trading system. I am not philosophically opposed to it; I support it because our constituents have benefited from this and the country has benefited from it. We have created a lot of wealth and employment in this country over the years because of trade agreements. If Ireland and other countries were not to ratify CETA at the end of the day, the EU would have to consider not going ahead with it and reversing the tariff and other arrangements we have found to be beneficial.

On the issue raised by Deputy Smith about Ireland opposing things in Europe, we actually supported the decision of the Commission on the nitrates extension. Ireland was very supportive of that. While we do not always support things at a European level, we work with them. This is an agreement that is worthy of support and that we are essentially putting in place already provisionally. We want to continue to have the benefits from it. I have set out in some detail the provisions of the agreement and the associated agreements and declarations that go with it, which really go to the heart of addressing the concerns that have been raised by Opposition parties in this country.

I understand the Deputy's concerns about pre-legislative scrutiny not applying here. I understand that but I am very much pro-CETA. In my previous career as a businessman I was around in 2013 and 2016. We lose sight of where we came from. If we look at what CETA has brought us, it has gone from €3.6 billion to €10 billion worth of trade. I saw there were 23,000 jobs in 2023. My fear, if this does not go ahead, is what the permutations will be. Will we end up losing serious trade and losing serious jobs in Canada? We cannot lose sight of where we have come from. Just because we are at zero unemployment in the country I feel we sometimes lose sight of where we came from. I was in the middle of it and I lost. In terms of investment funds coming in, unfortunately - and I know it first hand - that is the way the world works. If it is not from Canada, it will come in from another country. I feel there is a bit of Canada bashing going on here today and I am not happy with it. I am just putting that on the record. Would the Minister of State like to respond to that?

There is no Canada bashing going on at all.

I am allowed to have my opinion as well.

I am not sure what would prompt that. Also the Minister of State's concern for my own constituents and their jobs is noted. The concerns that have been expressed are legitimate. They are not anti-trade concerns. They are very legitimate concerns that have been expressed by members of human rights organisations, eminent lawyers, etc. It is not a Canada bashing forum, nor should it be. Certainly, that is not what I or anyone else has come to do, I do not think.

Can I ask that the Minister of State reply to my question, without interruption? If this did not go ahead, what would be the consequences for Ireland?

At least one person will speak without interruption then, perhaps.

I am in the hands of the Chair. We can look at what has happened since CETA was provisionally applied in 2017. Our total exports have doubled. Irish beef exports have grown 14 times, so beef farmers have seen exports to Canada grow by a multiple of 14. Agrifood and seafood in general has increased. Deputy O'Reilly's constituents are heavily involved in agrifood and seafood. There has been a 66% increase. Most constituencies in this country have a pharma plant with loads of workers. Pharma exports have grown by 153% because trade is easier with Canada. There are 27,000 Irish jobs directly or indirectly supported by about 75 Canadian-owned companies. The potential is there for that to be reversed, ultimately. That is not a realistic prospect in the immediate future but if it were to happen that this agreement could not be ratified, the discussion would have to be had at EU level. We have had no instances so far where any company has suggested that if the investment protection provisions were in force they would need to avail of them. There has been no suggestion of that whatsoever. There is not even the remotest possibility of that under this agreement.

What we are trying to do here is legitimately ratify a trade agreement, which went to the Supreme Court, and then follow the advice from the Supreme Court as to how we would do this in a constitutional manner.

The Minister of State has expressed the statistics for beef exports, trade, etc. All of that has taken place without this legislation going through. It is a real possibility that could be reversed whether this legislation does or does not go through. I am not sure whether he can make a good argument in favour of this legislation and perhaps we might hear it. Am I right that the things that he said might happen could happen whether we pass or do not pass this legislation? The trade is not under threat because that trade has grown in the period before this legislation was enacted.

We want this trade to continue. My point is that we need to pass this legislation to ratify CETA. If we do not ratify CETA, then we will have to have discussions at an EU level as to whether CETA can continue and whether this type of trade can continue under the same agreed terms in terms of lower tariffs.

And that is a discussion to be had at European Union level if this does not proceed?

If we are not able to ratify, which we would not be able to do if we do not pass this legislation.

And that would be a question for the European Union at that stage?

We are the European Union.

Then it is a question for yourselves.

It is not some distant remote organisation. It is the member states of the EU that will discuss that.

I was not suggesting that it was. It was the Minister of State-----

I do not feel the need to prostrate myself about being in favour of trade or not being supportive of jobs - good jobs - that have been created, etc. If the investor court system were not part of CETA, I do not think there would have been much resistance to this trade deal in the Oireachtas in the last Dáil. It is this issue.

The Minister of State has said the companies here and the economic investment that is here have not shown any remote interest in using the investor court system. Therefore, why have it? The investor court system was created in the mid-20th century for the world powers to ensure that their investments were protected in the new and emerging states in the developing world that did not have strong and robust judiciaries. We could have a whole philosophical argument about that and 20th century economic policy, but it should not be applicable in 2026, between sophisticated modern economic blocs such as the European Union and a country like Canada, to have an investor court system. That is a just philosophical argument as well as a just argument to have and a political position to take. We have a robust courts system here. If any investor, economic entity or individual has a problem with the actions of another actor, be it the State or others, we have a robust courts system here. We do not need an archaic, antiquated, outdated and third-party parallel investor court system. I cannot believe the EU has agreed to this when Canada is taking it out of other agreements. We still do not have full clarity as to why that is the case. Today's meeting is one of the few opportunities we have to debate and, indeed, labour positively this point. Trying to position the Opposition, be it my party or other parties, as being naive to the economic benefits of certain trade agreements or to be anti-trade or anything like this holds absolutely no water with the majority of Opposition parties in this Oireachtas and I reject that thoroughly.

I have a lot of sympathy for the points that people are making but let us look at the hard facts. Trade between Canada and European countries, particularly this country, has increased exponentially. Why has it increased? It is because of the provisional application of the CETA agreement. Is CETA perfect? God, it obviously is not. Nothing that man will ever create will ever be perfect. What we are trying to do here is make perfect the enemy of good. I do not know why the Canadians have insisted on this provision remaining within the agreement, but my understanding is that that is where we are at at present. Sometimes if you are going to grow the economy, and we have been very successful in growing this economy, we have to be prepared to take some risks. It would appear to me here that the risk is infinitesimally small. I recall being in the United Arab Emirates many years ago and one of the logos that appeared in many of the public service offices was that the biggest risk in life is the failure to take risks. God knows this country is averse to risk at every hands turn. If the risk here is infinitesimally small but the benefits are obvious and we are accruing the benefits already, then let us get on with it I would say.

Can the Minister of State confirm to me that ten member states have not ratified?

It is nine not including us.

Let us take it as nine not including us. In the absence of ratification by other states, the provisional arrangements as outlined will continue. I am trying to understand what the sense of urgency is given that at least nine other states have not ratified and there is no timeline, as I understand it, for a vote at European level. The Minister of State can enlighten me on this, but if there is no timeline for a vote at a European level and are there are other states, that suggests to me that the provisional arrangements such as are in place will and can continue. Perhaps the Minister of State has other information that will contradict that. I do not think there is a timeline within the CETA agreement. Again, the Minister of State can enlighten us on all of this.

Again, it is a fundamental point to all of this that, when CETA was first agreed, the same concerns were outlined. The experts have said that none of this is possible. In 2017, as a result of concerns being raised at that time, the same concerns the Deputies are raising today, a document was agreed between the two sides, and I have quoted from it already, called the Joint Interpretative Instrument on the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its Member States. It is a short four-page document setting out the responses to the types of concerns raised by the Deputies. Paragraph 2 is the right to regulate, and that is the right of states to regulate and to adopt and apply their own laws in the public interest to achieve legitimate public policy objectives. There is reference to regulatory co-operation, social security, investment protection, trade and sustainable development, labour protection and environmental protection. If the Deputy does not have a copy of the document, we can send it to her. The document was done in response to the concerns that people raised. People did not see these as a serious issue from a legal point of view but recognised it was a political reality in terms of what people were saying, so they said we had better address those concerns, although we do not see them as an issue, and they were addressed in the joint interpretative instrument.

In terms of ratification, there are quite a number of countries that have not ratified this yet, including Ireland, and if they were to come to a definitive position or any one country were to come to a definitive position that they were not going to ratify this, then there would have to be discussion at EU level about whether we were actually going ahead with this at all. The reality is, in terms of trade, Ireland is one of the most active trading economies in the world. We depend more than most on trade for jobs in this economy. Ireland is a reliable partner for companies and countries in the trading world. That reputation is very important for us to show that we are interested in attracting business and doing trade. I accept that trade is not important across the political divide. Simply, there is a different political philosophy across the political divide as to how the economy should be run. We had an election in 2024 and one of the issues concerned the enterprise economy we have built up through our membership of the European Union, the development of our education system and being open to the world from Seán Lemass on. That is my political philosophy. It is not everybody's political philosophy but it is mine and I am putting it forward here today on behalf of the Government.

I will say the following in terms of our forthcoming Presidency of the EU.

We want to see momentum around trade because we think the EU benefits from that and we know that Ireland benefits from it. It would be important to ratify this agreement in the context of our Presidency of the EU.

I just asked a very simple question about timelines. There are no timelines specified, as I understand it, in the agreement. I am concerned about what the Minister of State is saying could potentially happen. He cannot provide a timeline, certainly not within the term of the Presidency. My question is around the need for us to rush, to waive pre-legislative scrutiny and all of that. We have all accepted that pre-legislative scrutiny is generally a good thing. I do not understand why the Minister of State is saying what he is saying. I understand all of the deflection stuff about trade. I get that. That is just politics but in terms of the timeline, there is none specified in CETA. Nine states, or ten including us, have not ratified it and it is my understanding that they do not have a timeline for ratification either. The Minister of State has introduced another strand to this and while I completely respect that this is a trade agreement, there are elements of it that continue to cause concern for people here today, which he should acknowledge. In terms of the timeline and the fact that there are nine other member states that have not ratified this, what is the timeline that they are operating under? Are they on a different timeline from us? Is there a specific timeline in the Minister of State's head, with dates?

The timeline that I have is the programme for Government. There is a commitment in the programme for Government to ratify and implement this agreement. We want to do it. This has been raised with us by Canada and the European Commission. When we meet our Canadian counterparts they place great importance on this. I have no doubt that if Canadian MPs were meeting friendship groups, they would raise it too. I am implementing the programme for Government and am determined to do that. We have been given the structure by the Supreme Court and what we are doing in this Arbitration (Amendment) Bill will allow us to ratify the agreement.

If we do not have a vote, then the provisional application continues. Is that right?

If we-----

If we do not have a vote, the provisional arrangements, exactly as we have outlined, continue because-----

We will have a vote because it is on Committee Stage of the Dáil today. There is no doubt that there will be a vote and that vote-----

No, I asked a different question. Sorry-----

As a matter of policy, the Government wants to ratify this agreement. It is very important, from the country's point of view and from the EU's point of view, that it is ratified by Ireland.

That was not the question I asked, though. I did not ask the Minister of State to outline how important he thinks this is. I just asked what the situation would be if there was not a vote. That is perfectly possible. We have all been involved with legislation that has fallen for one reason or another. If there is no vote then, in that instance, it is my understanding that the provisional application, as we sit here today, will continue to apply. I am simply asking the Minister of State if that is also his understanding.

Not indefinitely, no.

Okay, so what is the time limit on it?

There is no time limit on this.

Exactly, so it will continue to apply.

There is no time limit. The EU is not forcing us to do this. This is a choice. My choice and that of the Government and the people of Ireland is to do trade, promote trade and ratify this agreement. That is what the Government chooses to do, supported by the Dáil.

I just asked a simple question in relation to timelines. There is not a timeline and I am happy that my question has been answered.

I am conscious that we have let that run but it was important to let it run. Deputy Smith, are you pressing the amendment?

Yes.

I move amendment No. 8:

In page 4, line 10, after “Court” to insert the following:

“, and only after the High Court has determined the application in accordance with subsections (3) to (3C),”.

Amendment No. 9 has been ruled out of order because it is in conflict with the principles of the Bill.

I move amendment No. 10:

In page 4, to delete lines 14 to 19 and substitute the following:

“(3) The High Court shall refuse leave under subsection (2)(i) where, having considered the matters in subsections (3A) and (3B), it considers that enforcement of the award would—

(a) materially compromise the constitutional identity of the State,

(b) materially compromise fundamental principles of the constitutional order of the State, or

(c) materially compromise the State’s obligation (reflected in Article 29.4.4 of the Constitution) to give effect to European Union law (including the Charter of Fundamental Rights and Freedoms) and to preserve its coherence and integrity.

(3A) Without prejudice to the generality of subsection (3), enforcement shall be refused where the High Court is satisfied that the award (or the reasons for the award) involves any of the following:

(a) is founded on a determination that an action or decision of the people, at a Referendum in accordance with the provisions of Article 46 or Article 47 of the Constitution, constituted or contributed to a breach of the international treaty in question,

(b) is based upon, or gives effect to, a refusal by the relevant tribunal to follow a material decision of the Court of Justice of the European Union,

(c) is inconsistent with, or would require the State (or any organ of the State) to act inconsistently with, a final and conclusive decision of an Irish court,

(d) is founded on a determination that an Irish court has denied justice or committed a fundamental breach of due process in judicial proceedings, in circumstances where enforcement would amount in substance to a collateral attack on the finality and conclusiveness of such decision,

(e) would impose on the State liability in damages in respect of the enactment or maintenance of a legislative measure (or a measure having the force of law) enacted in good faith within the State’s constitutional order, or

(f) would otherwise be at odds in a material way with the legislative and juridical autonomy of the State.

(3B) For the avoidance of doubt, the categories in subsections (3) and (3A) are not closed.

(3C) An application for leave under subsection (2)(i) shall be determined on notice to the parties and after hearing such parties as the Court considers appropriate.

(3D) The burden of establishing that leave should be granted and that none of the grounds requiring refusal under subsection (3) to (3B) arises shall rest on the party seeking enforcement.”.

I move amendment No. 11:

In page 4, line 18, to delete “or” and substitute the following:

“(b) international agreements, conventions or treaties which the State is already party to, including but not limited to—

(i) the Paris Agreement,

(ii) the 2030 Agenda for Sustainable Development,

(iii) the Convention on Biological Diversity;

(iv) the Aarhus Convention;

(v) the International Covenant on Economic, Social and Cultural Rights, or

(vi) conventions of the International Labour Organisation,

or”.

I move amendment No. 12:

In page 4, between lines 19 and 20, to insert the following:

“(3A) Without prejudice to the generality of subsection (3) and as non-exhaustive examples of the operation of that subsection, the constitutional order of the State would be compromised if enforcing an award would expose the State—

(a) to an award of damages, on a strict liability basis, arising from the enactment by the Oireachtas of a law—

(i) the validity of which had been upheld in accordance with Article 34 of the Constitution, or

(ii) the Bill for which had been referred to the Supreme Court by the President under Article 26 of the Constitution,

or

(b) to an award of damages which in substance amounted to a collateral attack on a decision of the Supreme Court that was, by Article 34.5.6 of the Constitution, made final and conclusive.”.

To get back to an earlier point, I know the Minister of State is not the senior Minister in relation to this. This goes back to previous Governments. We are talking about risk and one of our fellow committee members said the risk was infinitesimally small. What level of discussion took place at senior Minister or senior official level in relation to the risk of investor courts, be it in the past week, in 2020 or previously? What level of discussion took place in relation to the risk to the Irish State in terms of financial and economic injury if a case was taken against it? I would like to get a sense of how much discussion took place.

There was obviously a lot of discussion around the political points made around the time CETA was agreed in relation to the issues that have been raised. That is why the joint interpretive instrument was agreed between the multi-party sides. That was agreed and sets our clearly how our choices on public policy are not affected by this agreement.

Is the Minister of State satisfied there is no risk or that the risk is so small that we do not need to worry about it whatsoever? Was there any scenario planning done on what could happen to injure the Irish State economically and was that discussed at senior ministerial or senior official level? Was there any examination against existing investor court systems the EU or Irish state is party to?

I have made this point numerous times. The real risk is the risk to trade if we do not ratify CETA. We are exposing Irish people to financial risk and job losses if we do not ratify it, ultimately. This Bill is part of the pathway to ratifying CETA. Since the start of the provisional application, Irish merchandise exports to Canada have more than doubled in value. I already outlined different sectors where that has happened. We have looked at this really carefully legally. CETA clearly defines the scope of the investor court system and the conditions under which an investor could be granted compensation under the investor dispute resolution provisions. Even the investor court system is an improvement on the older ISDS system, which is the system Canada moved away from. We have also moved away from it to put in place in this agreement the investor court system. The investment dispute resolution provisions under CETA are strictly limited to breaches of investment protection provisions which enshrine fundamental principles such as non-discrimination, expropriation only for public purpose and against adequate compensation and fair and equitable treatment, and which has caused loss or damage to a specific investor. These are similar conditions that apply under the Irish Constitution if the Government was to expropriate or do the type of things Deputy Smith is envisaging. Domestic Irish law also has similar provisions.

Ms Justice Dunne said:

It is difficult to imagine a provision or measure of Irish law which would amount to a breach of CETA, giving rise to a claim which would not, of itself, give rise to a claim before the Irish courts arising out of similar circumstances.

CETA and similar agreements provide a precise and specific standard of fair and equitable treatment of investors and investment. They contain a list of circumstances which can be regarded as violating the principles. CETA also clearly defines indirect expropriation, specifying that non-discriminatory measures to obtain legitimate policy goals are not deemed to be indirect expropriation unless they are manifestly disproportionate. CETA reaffirms the EU's, the member states' and Canada's right to regulate to achieve legitimate policy objectives. It is made clear, as I have said, that the agreement does not imply an expectation that public policies remain unchanged. The agreements clarify that the fact the measure may negatively affect an investment or someone's expectation of profits is not enough to say the measure breaches an obligation contained in the agreement. Any tribunal is precluded from awarding punitive damages. CETA clarifies that any compensation due to an investor would be based on an objective determination by the tribunal and will not be greater than any loss suffered.

It is also explicitly clarified in CETA that governments can change their laws, regardless of whether this negatively affects people's expectations of profits. As was said in court, it is difficult to imagine a measure that would lead to compensation under CETA which would not similarly lead to compensation under Irish law. In other words, we would not necessarily need the investor protection because this is stuff we already do. The investor protection is in the agreement. The agreement is broad. I do not see any negative consequences of the investor court system. We could decide not to have it at the time the agreement is reached. It is there. We are benefiting from the agreement and we do not see negative results from the investor court system. We see huge benefits that are already being realised, and will continue to be realised, from the trade provisions.

This will be my final contribution. The Minister of State does not see it, but maybe he does not want to see it. We are talking about risk here and we could argue all day about potential risks. In his previous contribution, the Minister of State made a good argument setting out why the Irish legal system is robust enough to handle any investor disputes. When we had pre-legislative scrutiny on the occupied territories Bill we had representations made to this committee from the American Chamber of Commerce. I checked my emails this morning and the Ireland-Canada Chamber of Commerce has not made any representations to this committee, as far as I am aware, or its members seeking the investor courts element of this Bill to go through. I imagine it wants CETA to go through, so my question to the Minister of State is this. Are any Canadian companies saying to the Government that if the investor court system is not included, they are out of here and all of the progress that has been made on trade will be put in jeopardy? The Minister of State is saying that is the risk whereas what we are seeing is a healthy, improving trade relationship with Canada based on the partial implementation of the agreement thus far. From what we are hearing, I do not think the Canadian companies themselves are that interested in the investor courts element. We are certainly not getting representations in relation to that. Are Canadian companies articulating to the Minister of State that if this does not happen, they are out of here?

It is not a partial implementation of the agreement; it is a provisional implementation of the trade provision. Provisional does not mean permanent; it means it can be taken back. Canadian companies and any Canadian counterparts I have met have raised the ratification of CETA. CETA is one agreement. It is a package. We either ratify it in total or we do not. We have not ratified it yet. If this legislation is passed, it is the Government's intention to ratify CETA and we will talk to the EU. If we do not ratify it, we do not ratify the whole thing. It is a package, not pick and choose.

Canadian companies want this agreement to be ratified and Canadian counterparts have said to us that they want it to be ratified. It is a programme for Government commitment to ratify it. The Government wants to ratify it because it sees significant benefits for the economy from this agreement. There is nobody forcing us to do this. We do not have to engage in trade with the rest of the world. We have chosen to do it because it gives this country significant benefits and our workers and companies have shown themselves to be capable of extracting those benefits, which then come back into our society and economy. The Government has chosen to ratify this agreement and the only way we can ratify it is if we follow the suggestions or proposals in the Supreme Court decision and pass this Bill. That allows us then to ratify the agreement. The agreement is all or nothing, essentially.

That concludes our consideration of the Arbitration (Amendment Bill) 2025 on Committee Stage for today. We will come back on exactly the point where we left off, namely, amendment No. 12 in the name of Deputy Duncan Smith. Further consideration will be required to complete the rest of the process. The committee will schedule a further meeting for this purpose as soon as possible. I thank all of my colleagues, the Minister of State and his staff for being here today. As there is no other business, the meeting of the select committee is adjourned sine die.