The Irish Times | 16 December 2020
Canada trade deal shows Government’s breathtaking arrogance
by Michael McDowell
The delay negotiated between Eamon Ryan and his fellow Coalition leaders for Dáil consideration of the Canada-Europe Trade Agreement (CETA) raises a number of issues. It raises questions about internal communication between Green Party TDs. It raises questions about the utterly cavalier approach of the present Government to Oireachtas scrutiny. It raises questions as to whether Ireland should embrace multilateral trade deals between the EU and its member states and foreign states such as the US, Canada and Japan involving investor-state dispute settlement (ISDS) procedures.
Back in October 2016, the Seanad voted to reject the provisional application of the CETA deal negotiated between the EU and Canada. On that occasion, Fine Gael’s position in favour of CETA was rejected by the Seanad because Fianna Fáil abstained.
Binding arbitration
CETA had been amended to replace an ISDS system which would allow private binding arbitration of disputes between foreign corporations and EU member states by the replacement of arbitration with an “Investor Court System”. The Association of German Judges condemned the proposed new court on the basis that it fell below minimum standards for judicial systems in democratic societies and because the EU lacked legal power to impose it on member states. The European Association of Judges followed suit.
The very concept of allowing a foreign corporation to sue a sovereign state is deeply controversial where the dispute is heard outside the state’s legal system. In democracies, the people through their votes determine fundamental constitutional obligations of their states to citizens and to third parties.
Making democracies forgo the right to make sovereign decisions affecting corporate interests of multinational investors is deeply questionable, whether done by arbitration, as proposed in the now-stalled TTIP agreement between the EU and the US or through any Investor Court System (ICS). Why should multinational corporations enjoy parity with sovereign states, especially when they demand the right to exist offshore for taxation purposes?
Is it essential for transatlantic trade and investment that states such as Ireland should surrender their sovereignty to the jurisdiction of an ICS system?
Whatever your view as to whether such diminution of sovereignty is necessary or proportionate to any argued benefits, you might think that Dáil Éireann, as a chamber of a sovereign parliament about to consider CETA might provide more time to debate the issue than the ludicrous 55 minutes that the Government whips attempted to impose. This would allow each member about 30 seconds if they all chose to speak. It would allow each recognised Dáil party or grouping a maximum of seven minutes to explain its own position, let alone try to persuade others to agree.
Limiting debate
This rubber-stamp arrogance of the present Government is breathtaking. While it is unlikely that every member would want to speak on this subject, limiting debate to 55 minutes was a shocking proposal by any parliamentary standard. In truth, it betokens utter contempt for Dáil Éireann as a democratic institution.
The idea of ISDS or ICS raises profound issues which might, on one view, require explicit constitutional authority by way of referendum. Is it open to a rubber-stamp majority in the Dáil to make Ireland, as a sovereign independent state with freedom under the European Treaties to accept or reject CETA, subject to the binding and enforceable jurisdiction of an international arbitration tribunal or court? And all in 55 minutes of bullet point debate?
The position of the Greens is unenviable. Fine Gael, a fan of CETA, proposed it as part of the programme for government and the Greens rejected its inclusion. The Greens in the European Parliament wholly opposed CETA.
They argue, with some force, that CETA will inevitably confer entitlement on North American corporations, including those owned or controlled by US corporations, to sue the sovereign member states of the European Union in a manner considered unacceptable in the stalled EU-US TTIP negotiations.
Unusual features
CETA appears to have highly unusual features including a preservation of corporate rights for a 20-year period even after a state has withdrawn from it. So even if a state exercises its rights to leave the EU under article 50, it might still find itself bound for another generation by the jurisdiction of the ICS tribunal.
Ryan has stated that his previous opposition to CETA no longer applies because of a decision of the European Court of Justice to the effect that CETA was subject to the predominance of European public interest law. He also cites an amendment to CETA protecting actions taken in pursuit of the Paris climate agreement.
Lastly, he says that the EU and Canada are agreed on vague movement towards a multilateral investment court system rather than one where shareholders or corporations have a specific role or status.
These suggested differences deserve consideration by our parliament. But to attempt to do so in 55 minutes was grotesque and shameful.