Alice-Mary Higgins
National University of Ireland · Independent · Ireland
“We are signing up to be customers of liquefied natural gas - potentially fracked gas, potentially coming from a country that is busily fighting against climate action and trying to fast-track our route to destruction. We will be doing that every year in the budget and every day in the terminal.”
“We are not getting solid measures on those safeguards. The other safeguards we have, which are our planning laws and climate laws, are being either fast-tracked or suspended. We are suspending the existing safeguards and are not putting hard safeguards into this Bill, and we are being asked to go on faith.”
“Nonetheless, I have some practical questions. We need a little more on what the emergency is because it is not sufficient to say we will deal with it then. The emergency is the ground on which the Minister of State is asking for the normal planning process and the climate Act to be suspended. We need to know what the emergency is.”
“It should happen only after all relevant market-based measures have been implemented. Those market measures should include the demand-reduction strategies that are eligible under N-1, including demand reduction by large energy users, and should have been implemented, exhausted and proven insufficient.”
“Sure there is detail in it but the key issue is that what he is asking of the Oireachtas, which is to agree to it being built, is on the argument of there being an emergency. It should be very clear what the emergency is. I mentioned previously that the committee said our N-1 obligations could be met through demand management.”
“It comes from real places with real communities that are immediately and terribly impacted by fracking, as well as having an impact on the atmosphere that surrounds our beautiful planet, which we are destroying. As the Minister of State said, it impacts not just on business but on the liveability of large portions of this planet.”
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“What is the Government's position and perspective in relation to this? Will the Minister of State comment explicitly on the Energy Charter Treaty in relation to enforcement of it, as well as on the question of future enforcement?”
“We can choose to give power to the investor courts but once we have done so, we cannot exit on our own from the investor court component or other components. This is the high-stakes game the Government is entering us into. We would require all EU countries to agree simultaneously to exit and there would be a zombie clause. That is just for CETA, which is one of the agreements we are talking about. There are other arbitration tribunal systems and the other trade agreements that may come in under this legislation. If the Bill is about enforcement, will the Minister of State, by accepting our amendment, ensure that the High Court is empowered to deny enforcement and state that there will not be enforcement of any order that is made in relation to an agreement which we have left? Will we be tied to the zombie clauses?”
“This is relevant because when we look to what we want to achieve on climate by 2030 and 2040, we would be a lot further down the way of being out of the influence of the Energy Charter Treaty if we had acted earlier when the first warnings about an exit were given. Those warnings were given by the Opposition and were disregarded by the Government. Will the Minister of State confirm that the Energy Charter Treaty can be enforced? Does it fall in here? It is one that we have exited. If we sign up to another agreement and we exit it, and during the period of a zombie clause attempts are made to enforce it, will our High Court still allow the enforcement of an agreement we have left? How long does the finger of this last? In the case of CETA, we know it will be extremely difficult for us to leave.”
“With this amendment, we are effectively looking to ensure that the provisions of the section would not apply to an international agreement if the State is no longer party to that agreement regardless of any provisions in the aforementioned agreement. This is with regard to what we learned from the Energy Charter Treaty. Some countries were able to exit it immediately because they provisionally applied it for decades. That is an option. When others exited, they were faced with a 20-year exit clause. Ireland was one of the last countries to exit the Energy Charter Treaty, up to four to five years after there had been calls for that exit. Ireland delayed and delayed and said we wanted to wait until the European Union as a whole left, which it did, and then Ireland waited another two years.”
“I move amendment No. 16: In page 4, between lines 31 and 32, to insert the following: "(6) For the avoidance of doubt, the provisions of this section shall not apply in respect of any international agreement referenced in subsection (1) if the State is no longer party to that agreement, regardless of any provisions within the aforementioned agreement.".”
“It includes potential future other agreements and arbitration measures. The legislation is not a bounded set. It opens it up to a new set. We are simply trying to put in a provision in relation to other future agreements.”
“I would not be so confident and that is why I was looking to put in that safeguard so that, at a minimum, we would ensure that unknown future trade deals with unknown arbitration measures attached that the Minister may look to tie up by a single Dáil vote will only be with countries that are part of the Paris Agreement.”
“It will simply be a vote of the Dáil and that is going to be the decision - a Minister's proposal and a whipped vote of the Dáil - in relation to any future potential trade agreement with any kind of future arbitration agreement measures attached to it. There is absolutely no guarantee as to what they will be besides the Minister of State's hope for what it might be. Sadly, we have already seen a huge dilution of climate action over the past couple of years, which is a very worrying signal. We have not seen a strong and robust push back against the US in terms of it leaving of the Paris Agreement. In fact, we have said we will buy its LNG. We will buy its LNG, which is one of the most damaging fuels to the environment, produced in a country that has said it will not abide by the Paris Agreement.”
“The key thing is that the corporations do not have to necessarily have this. We have seen a huge dilution of climate laws. The Minister of State quoted from CETA, which my amendment did not even relate to. My amendment related to new and other agreements. For example, the US has left the Paris Agreement. Will Europe negotiate a new trade deal with the US and will Ireland become party to arbitration measures under that if the US remains outside the Paris Agreement - "Yes" or "No"? Is that going to be part of it? Is it going to be there? We do not know. This is the key point. We do not know the countries with which agreements may be made and we do not know what conditions may be attached to them but we do know that we will not even have the opportunity to waive pre-legislative scrutiny the next time this comes around.”
“Some countries provisionally ratified the Energy Charter Treaty for 20 years and were then able to exit it immediately, whereas the countries that fully ratified it had a 20-year zombie closed attached when they all tried to leave, having all thought it was going to be fine. The public interest concerns are very real. Simply saying it is new and we think the text will work better does not justify the taking of a risk. It is the choice of the Government to push this matter through at a time when there is no obligation and there are no trade benefits or issues with our national courts. That is risk-taking behaviour in the extreme. As I said, on the public interest point the Minister of State has not addressed the question of the repeal or modification of laws in order to reduce the bills. I would like if that could be addressed.”
“I have worked on it for 15 years. We had a discussion on this in 2016, during which I spoke to a Government Member who said if it was as bad as it seems we would not be doing it, but we are doing it so it must not be as bad as it seems. That was the end of the argument. It was a circle of an argument. That is kind of where we are now when it comes to the public interest. We are all saying that there is a risk to the public interest, and the evidence of decades shows that. The Minister of State said it is too late. It is not too late. He has provisional trading applying. He has acknowledged that there is no deadline or timeline that requires Ireland to move to full ratification. There is no pressure if there is no date in Europe.”
“I literally do not know what the Minister of State is saying in that regard. The European Court of Justice Singapore ruling made it clear trade is the EU competency, that is what the Commission does, and the investment court component is a sovereign and separate decision. That is what was anticipated, that it would be treated separately in 2016. At that time, the Government was really confident that was not going to happen and it was wrong. The Government is very confident that somehow for the first time in history there will be an arbitration tribunal body that will never have an impact on the public interest despite decades of experience. That is why Trócaire cares about it. That is why I care about it. I come from working with Comhlámh, which led on this when it saw the impact these kinds of agreements had on developing countries.”
“It is a thing that is wanted by corporations which they added on because CETA started negotiations years ago when these were still in play. They are not adding very much but the Government is asking us to take a risk, just trust and not worry because it thinks it is going to be fine. This reminds me of when I brought my very first Private Members' Bill in 2016 on CETA and the Singapore agreement. The Government argued I was wrong but I was right. The European Court of Justice proved my analysis was correct. I said they were going to treat the trade bit and investor courts separately, that is what was going to happen and that is what did happen. Investor courts are treated separately. That is part of why we have this whole set of decisions. The Singapore ruling-----”
“The risk the Government is taking - it is saying it is a new thing, we do not know how it is going to go but it thinks it is going to go great yet we are telling the Government this is how it has always gone. In every instance, this is how corporations have continuously used these tools again and again. There is text built into the supposed new regime that talks about diluting laws and repealing or modifying them to avoid the bill. The companies that take cases advertise the fact that you can get a country to change its laws without even having to win the case, by just the threat. That is how it is designed to work, and the fact that there has never been a case made that it is really needed because our courts work fine.”
“I do not need to speak about the amendment at great length because it is a point that has been made. These are issues of the public interest. They are the concerns which have been expressed very strongly by all across the Opposition. They are very legitimate concerns. They are based on the evidence of every arbitration body that has ever existed, though the Minister of State reminds us that one of the arbitration bodies attached to the CETA is a new one even though of course there is potential for old rules to come in and for other forms of arbitration to be attached to other trade deals with this new mechanism. All the evidence of how this has panned out every time it has been done is that cases are taken against the public interest and the public interest is compromised. That is what we pointed to in the evidence.”
“I move amendment No. 10: In page 4, between lines 19 and 20, to insert the following: “(4) The High Court shall have full discretion to refuse leave for enforcement of an award made pursuant to an international agreement to which this section applies where such enforcement would not be in the public interest.”.”
“The text has not been addressed - the Minister of State read the interpretative agreement, which does not have a binding piece. Article 8.39(3) states, "For the calculation of monetary damages, the Tribunal shall ... reduce the damages to take into account ... repeal or modification of the measure." If you change or repeal the law, you will have less of a bill. If that is not a clear chilling effect, I do not know what is. The Minister of State also did not address "fair and equitable". I will press this amendment. We will have a chance to come back on other issues.”
“There is a concern not just in terms of the effect on laws but on other policy decisions of the State that may be seen not just as frustrating a reasonable expectation of profit but that they feel they have been unfairly or inequitably treated. They should never be able to make that claim in an instance where the decision was in terms of compliance with equality and they certainly should not be able to enforce such a claim. Equality measures have been the target of arbitration cases in the past. I mentioned those who sought compensation for the end of apartheid - companies saying that the end of apartheid messed up their expectations and they believed it unfair and inequitable to be treated in that way. It is a reasonable measure.”
“Amendment No. 9 is the same point in respect of measures that are taken in relation to equality. In their public procurement decisions, the State and various bodies of the State, as public procurement falls within the remit of the CETA deal, have an obligation to ensure compliance with section 42 of the Human Rights and Equality Commission Act, in terms of a positive duty in respect of equality and human rights. Where a policy or procurement decision is made, to ensure compliance with that duty on equality, such a decision should not be eligible for the enforcement of cases. It is just one specific example of the public interest. The Minister of State has still not really addressed the chilling effect and awards getting reduced if you change or modify the law - that text in CETA - and the question of where fair and equitable comes in.”
“I move amendment No. 9: In page 4, between lines 19 and 20, to insert the following: “(4) The High Court shall have full discretion to refuse leave for enforcement of an award made pursuant to an international agreement to which this section applies where that award was in relation to a public procurement decision made to ensure compliance with section 42 of Irish Human Rights and Equality Commission Act 2014.”.”
“It would have to demonstrate that the enforcement of the award would not breach these factors and is not in breach of them. It is a shifting of the burden of proof. It would ensure that any enforcement in the State would at least have gone through some process of consideration by the High Court in which the question of the constitutional order and that of the EU would be weighed up.”
“Amendment No. 8 seeks to reverse the burden of proof, so that where an applicant is seeking leave from the High Court for enforcement of an award, the applicant would demonstrate that the enforcement of the award would not compromise the constitutional order of the State, the fundamental principles of the constitutional order of the State, or the State's obligation to give effect to European laws, including the Charter of Fundamental Rights and Freedoms. Rather than it being the case that the State would go to the High Court to say it does not wish to allow enforcement on an award, because it feels it is in breach of the constitutional order of the State or EU law, the obligation would be on the applicant, that is, the company seeking enforcement of an award.”
“I move amendment No. 8: In page 4, between lines 19 and 20, to insert the following: “(4) Where an applicant is seeking leave from the High Court for enforcement of an award pursuant to an international agreement, the applicant shall demonstrate to the satisfaction of the High Court that the enforcement of that award shall not compromise— (a) the constitutional order of the State, (b) the fundamental principles of the constitutional order of the State, or, (c) 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.”.”
“They are also being jeopardised in relation to choosing to make ourselves vulnerable in this way, taking the bird in the hand which we have in relation to trade, which is progressing, and the fact that, increasingly, there is huge pressure for future deals not to include these investor clauses and adding our weight to the movement against the inclusion of investor clauses, and instead, sacrificing here and making vulnerable or risking that bird in the hand for something which builds on the legacy of vultures in terms of how corporations have used these clauses and mechanisms.”
“Spain has had the Instituto Cervantes, in respect of which a case was taken in London to take possession of it. It has had its air traffic control business and cases taken to seek possession of that in Brussels. There are multiple examples of the enforcement of awards in foreign jurisdictions against national assets. Ireland is a country which has national assets spread right across the world.”
“It says any trade deal that contains an arbitration mechanism. We are choosing to tie ourselves into that, and it can be enforced elsewhere, and we have seen that happen. That is not a hypothetical. I mentioned the Villa Spada. The Minister of State rolled his eyes. No, that is what has actually happened. That is what happened to Spain.”
“In any case, we are also tying ourselves into a system which Ireland had largely managed to avoid, with the exception of the Energy Charter Treaty, which has had a chilling effect on legislation, which Ireland has been sued under and which countries all left because of the damage that it caused. We are tying ourselves into a system and not learning from all those examples I have listed: of South Africa, of Australia, of Canada and America, of Mexico, and of all of those countries right across the global south who have said "Never again" on investor courts or arbitration tribunals. We are choosing not to learn from that past but instead to tie ourselves into a system, which, by the way, is not limited to the investment court system, ICS, and this is in the Bill, which is explicitly clear. It is any arbitration.”
“6, it is important to reaffirm, and the Minister of State has had it reaffirmed, that by tying us into this system, even with this pretend non-enforcement clause, this fig leaf, which Senator McDowell and others have said will not effectively work and which is almost designed not to work, we are tying ourselves in to the idea whereby we are choosing to give away the power to issue awards against us to a new quasi-legal body, a new arbitration tribunal. We are choosing to surrender the sovereignty of our own courts and saying that we give it the power to issue fines on us, to penalise us and to create awards which we may or may not then enforce, but we know that they will be enforced.”
“The real teeth are being applied in relation to corporations and their entitlement to compensation. How many times have we raised concerns about the Aarhus Convention and concerns in terms of our Paris targets, which the Government seemed to be just accepting the fact that the 2030 agenda for sustainable development, which Ireland at a better moment in our history helped to negotiate, are not being met? At the same time, it can fail on those standards but the stick is being given to the corporations. The power is being given to the corporations and those who have the power to inflict monetary injury on the State take precedence over these international agreements which are actually the key to our collective future here on this planet. On amendment No.”
“They are not under an obligation to say that you want compensation but the Convention on Biological Diversity says this and the Paris Agreement says that. They are not obligations in terms of the determining of awards. Certainly, arbitration bodies have been clear that they do not regard them as limiting on them. The 2030 Agenda for Sustainable Development, for example, the Aarhus Convention, the International Covenant on Economic, Social and Cultural Rights, the conventions on the International Labour Organization and the Convention on Biological Diversity are really important because these are examples of the high points of our collective pooling of what we want for humanity and for how we live together in our countries and on this planet, but the teeth are not being given to these conventions or to their applications.”
“If the Minister of State chooses to reject this amendment, he is choosing to reject a safeguard that literally says we do not want to see these awards being enforced when it compromises the State's capacities in terms of legislating in the public interest where it has a negative effect, where it has a chilling effect or where, even in the cost of an enforcement, for example, it maybe diminishes our Exchequer and affects our capacity to do other important things that we may wish to do. Amendment No. 5 is clear in that these are the other really important things we sign up to. When the Minister of State talked about pooling our sovereignties and all of that, these are the things we have signed up to but they are not things that these arbitration bodies consider binding upon them.”
“This is why it is a fundamental piece that we would, in terms of the enforcement of these awards, put in a break, so that where we see that it will materially impair the capacity of the State to legislate or regulate in the public interest, where we see that impact happening, and where the Irish courts, which, unlike these arbitration tribunals, can and do take into account international law, European law, environmental law, case precedence, constitutional precedent, the public interest and the full balance, see a public interest concern in the enforcement of an award, we would ask why we should have to support it. If the Minister of State does not believe there will be cases that impact on the State's capacity to legislate or regulate in the public interest, there is no reason not to put this in.”
“There could not be a clearer application of pressure against states. A state that is taken to court and has, as was said by Senator Conway, an award of hundreds of millions or possibly billions made against it, can get that bill reduced if it repeals the law, modifies the law or does what the corporations would like it to do. That is a direct invitation to the compromising of the material capacity of the State to legislate and regulate, driven by the public interest, because it will come into a frame where there is the public interest on the one hand but then, on the other, there is the cost, the fact of that bill and whether we can get our bill from the corporation reduced.”
“Going back to the core question of the material impact on the capacity of states to legislate or regulate in the public interest, it is not just that we have a vulnerability to cases being taken. There is the chilling effect we have heard about. There are multiple examples. We have given them again and again, including Vermilion, a Canadian company with strong interests in Ireland which took a case and diluted French climate law. These arbitration bodies are designed to chill laws. It is not an unfortunate side effect. CETA Article 8.39(3) states: "For the calculation of monetary damages, the Tribunal shall also reduce the damages to take into account any ... repeal or modification of the measure." If you repeal or modify the law, then we reduce the amount you have to pay.”
“Did you encourage them to invest?" These are things we should be doing but we are adding a risk that encouraging or asking them to invest, seeking to induce investments, creating expectations and then changing the law in a way that frustrates the expectation of profit the company had at the time it was invited to invest creates a vulnerability to that company taking and potentially winning cases for unfair and inequitable treatment. Parliamentary questions were put as to whether that vulnerability had been identified, properly considered and weighed up by Departments and I have received nothing about that. What we were told was a regulatory impact assessment had been done - full stop.”
“fair and equitable treatment obligation, the Tribunal may take into account whether a Party made specific representation to an investor to induce a covered investment, that created a legitimate expectation, and upon which the investor relied in deciding to make or maintain the ... investment, but that the Party subsequently frustrated." This says that when the new tribunals - namely, the ICS - or the old tribunals under the old rules are weighing up and considering whether a company is entitled to compensation because of unfair and inequitable treatment, they will look to say, "Did you ask them to invest?”
“4 is "materially impair the capacity of the State to legislate or regulate in the public interest." Impairing the capacity of the State materially is adding an unknown future cost to regulation in the public interest and to the better choices we might hope future generations will make to address under-regulated areas such as housing and rental rights, care, many emerging areas of public health, the climate action that is needed, protection of biodiversity and digital regulation. When future governments representing future generations wish to legislate, this Government is choosing to add a new risk level to that law-making: it is the risk it might come with an unknown price tag attached and the risk that you might get sued. The language of CETA - which, again, is not all that is being opened up here - is this: "When applying the ...”
“The fact we provide a non-closed list of examples of unfair or inequitable treatment does not mean the same logics will not be used by other arbitrators. The evidence points to them being used. They are the precedents, even if they are in other courts, of unfair and inequitable treatment. Here is what is in the text of CETA. This is something the Minister of State has never answered. This is why public interest is key. The Minister of State will say the State can legislate and has the right to regulate but the language in amendment No.”
“Corporations do not have to sign up to climate targets in order to use the investor courts to seek compensation for an environmental law that impacts them. It is a tool that gives corporation a stick with which to intimidate or press states in relation to their laws and it continues to be the same in CETA, which is just one of the agreements we are discussing and only one of the situations to which the Government is seeking to open the door. The text in CETA is clear. We do not get to come back in multiple times so let us not circle around the mere fact of profit loss. It is not the mere fact of profit loss; it is profit lost due to your expectations being frustrated because you were unfairly or inequitably treated, which is exactly the language used in previous cases.”
“Many of the new generation of trade deals do not include these at all. Even Mercosur did not have them. The deal between the UK and the EU did not have them because they are toxic overreach by corporations who added these extra rights for themselves on top of a good thing we all want to see happening, namely, trade deals between parties. Interpretive documents have been quoted at length - the parties agreed to this, the parties agreed to that - in relation to CETA, but we are discussing here any number of unknown future trade deals. The states engage. They are the ones who commit to working together on regulation, raising standards and so on. That is between the parties who sign up to the positive obligations in these. Corporations do not have to sign up to anything but they get a tool they can use to exert pressure.”
“There has been a huge rejection because those in civil society and others who warned about the potential dangers were correct. Some reforms were then proposed. Those reforms were not spontaneously proposed by companies; they were proposed under duress by governments which had previously claimed the system was fine but were forced by pressure from civil society and others to institute reforms. They produced reforms that people are telling us about, including German court judges, the experts in civil society who identified the original problems and the IPCC - the highest climate body in the world - which has specifically named investor courts and arbitration tribunals as one of the significant blocks to achieving a liveable planet. The warning bells that were ringing are still ringing and the people ringing them are still correct.”
“They liked those in the European partnership agreement and started attaching them to other agreements. Then the message came that countries with much longer experience of arbitration tribunals than ourselves saw that the damage they did to public interest was immense. That is why there was a push-back and why NAFTA, which contained arbitration, was replaced by a deal between the United States and Canada which does not include investor courts between those countries and requires in the case of Mexico that domestic courts be fully exhausted before, in very limited circumstances, a case can be taken. It is why South Africa has led the rejection of these kinds of tribunals, particularly after Italian companies sought to sue it for the impact of the end of apartheid. It is why there has been a rejection from Australia.”
“These were originally inserted as a grab by corporations. I worked on these in the early 2000s when they were the European partnership agreements. This speaks to amendment No. 6 and to the international system, which is very exploitative and grants inequitable power to corporations and which the Government is choosing to tie us into. They were originally agreements imposed on African countries because European companies said they could not trust those countries' courts. Then corporations liked it. They thought it was wonderful to have their own court system that does not get tied up in any of the messy balancing-out of things like the public interest, environmental law and precedent. It does not have to weight all of that in. It simply looks to what corporations want discussed, which is how much compensation they should be awarded.”
“I am happy to speak in support of amendments Nos. 4, 5 and 6. Am I correct that they are grouped? Yes. I will speak to each of them. Amendment No. 4 reflects the concern that people have. This is the reason people and councils across the country voted in the past to express their concerns about CETA. It is the reason there has been such strong and consistent concern and opposition from civil society across the world about these arbitration tribunals. It is what is evidenced by how they have operated in the past. The Minister of State will say that the ICS is not sitting yet and we do not know what it will do. We know what every other arbitration body does and how it operates. We know there is nothing very distinctive to ensure we will not see the same effect. What Senator Clonan said was true.”
“The Government is seeking to create such exposure and choosing to push the idea of a ratification vote and a dynamic that will become extremely difficult for future generations and Governments to undo. The Government is binding the hands of those in the future with this. Again, I hope the Minister of State will indicate that he is going to accept amendment No. 29. Will there be deals with countries that are not party to the Paris Agreement? Where is the risk analysis? If the Minister of State is doing is doing what the court said, which relates just to CETA, why is he widening it to every other kind of agreement?”
“However, what we and experts can accurately predict are the likely outcomes of the ICS and other investor-state mechanisms attached to the EU-Chile and CETA agreements. The fundamental question is exactly as Senator McDowell put it: why create a separate legal system if we have confidence in our legal system and in its ability to balance the public interest in the widest sense and the full sphere of the law, be that international law, European law or our own national law? It is only an opportunistic grab by corporate power, which has a historical record in this regard, and it has been resoundingly rejected by almost every country that has had the misfortune to have been subject to these kinds of investor dispute mechanisms. Ireland has not been exposed to this to the same degree as others.”
“The gratuitous giving of power to corporations was recommended as an opportunistic element in respect of CETA but it has been absent in many current agreements. The Minister referred to regulatory impact. The risk analysis we seek in amendment No. 28 is to have clarification on the exact calculations in multiple areas, besides the hope and dream that the Minister of State has put forward. Amendment No. 29 tries to limit the scope to agreements with states that are party to the Paris Agreement. The Minister of State has talked a lot about the climate, but let us be clear. Can deals be made with countries that are entirely outside the Paris Agreement? It is possible under this legislation. That is just a reminder that we do not know what parties these deals will be made with. We do not know the terms of the future deals.”
“There has been a notable pushback from many of the countries that originally had this kind of extra court, a court outside the norms of the legal order they operated in, imposed upon them. South Africa became a champion in this regard when an Italian company tried to look for compensation for the ending of apartheid laws because it frustrated its reasonable expectations. Many other countries have taken that position. It is not that the direction of travel is the new courts; the direction of travel has been to remove them from treaties. Mercosur does not have one nor is there one in the Brexit deal. They are not being included in trade deals anymore because they are a parasitic element on trade agreements, which rightly should be between sovereign regions and states and those that are mandated by a public.”
“Much as we do not know, the Minister of State, despite his great statements of confidence about things being inconceivable, does not know what forms of rulings may be made in relation to the arbitration tribunal. In this regard, we can look only to the facts of previous patterns of behaviour. This is the fundamental point that Senator McDowell made. This is a choice to create a special court system that is only available to corporations. It is not available to citizens concerned about the financial impact of laws or how they are unfair or inequitable. There is a reason these mechanisms were originally introduced and imposed on African countries largely through economic partnership agreements and other provisions. There was an argument that their legal systems would not be adequate or appropriate.”
“Amendment No. 27 relates to the fact that we do not know what is coming. There is the old-time phrase “a pig in a poke”, and that is what it is. We are left wide open to future agreements or arbitration mechanisms any kind. As was said, the Dáil may be a technical imprimatur in relation to this, but the Seanad, which has shown great interest in these areas, will not. Agreements will not be subject to the kind of pre-legislative scrutiny that the Government sought to have waived on CETA. They will not be subject to proper and appropriate scrutiny, even though their detail is significant and requires significant decision-making. Again, we do not know what we sign up to.”