TD tells High Court of concerns over investor courts in EU-Canada trade deal

Patrick Costello claims they may impact on Ireland’s ability to introduce environmental regulation

Green Party TD Patrick Costello has told the High Court he is concerned investor court measures in the EU-Canadian trade deal CETA for protecting Canadian investors in EU member states may impact on Ireland's ability to introduce "much needed" environmental regulation.

Mr Costello said he became aware of CETA (Comprehensive Economic Trade Agreement) about 2016 when the Green Party was among a wide alliance of NGOs and community groups campaigning against it.

His concerns centred on provisions for investor protection and an investor courts service and he believed the impact of those means CETA must be put before the Irish people in a referendum.

Any time Ireland previously gave up sovereignty to create international bodies such as the International Criminal Court, it did so only after a referendum, he said. His concern about how Ireland feels legally able to proceed with ratifying CETA without asking the people, who are sovereign, has yet to be answered.


The Dublin South Central TD outlined his concerns to Ms Justice Nuala Butler at the opening on Tuesday of his action concerning the constitutionality of the investor protection parts of CETA.

Mr Costello is concerned those involve an unconstitutional transfer of sovereignty and judicial power. If the investor court system is brought into force without being sanctioned by a referendum, that would be contrary to Articles 15 and 34 of the Constitution, he claims.

His proceedings, against the Government of Ireland, Ireland and the Attorney General, raise significant constitutional issues concerning the power of the Executive to ratify CETA, as well as issues of EU law raised by the defence.

CETA is under ratification by various EU member states and the government had intended it to be ratified via Dáil motion before Christmas. A vote has yet to be called and CETA is currently being considered by two Oireachtas committees.

The bulk of CETA is a trade treaty designed to reduce tariffs and increase trade between the EU and Canada. The trade element has been provisionally ratified by the EU and Canada, and has been applied since September 2017.

Chapter 8 of CETA, the focus of Mr Costello’s case, provides for an investor protection and investor tribunal system. If ratified, a code of rules will come into force under which Ireland will be bound by restrictions relating to establishment of investments by Canadian investors here.

Mr Costello claims the protections for Canadian investors usurp and supplant the law making function of the legislature and the judicial competence of the Irish courts.

His concerns include there is no limit on the value of compensation which may be awarded under the investor tribunal system and neither the tribunal, nor an appellate tribunal, will be composed of judges appointed under the Irish Constitution. There is no mechanism under CETA reserved for the Irish courts via appeal or judicial review to determine whether the investor tribunal/appellate tribunal established under the CETA has given due weight to the rights of Ireland, he says.

The defendants dispute his claims and plead, inter alia, that ratification of Chapter 8 is within the scope of the Executive power of the State.

Opening the case, John Rogers SC, for Mr Costello, said the creation of rules which are enforceable against the Irish State before an investor tribunal, could lead to damages being awarded to a Canadian who has invested here and has a difficulty with a measure adopted by Ireland which may be “necessary and justifiable”.

CETA means, if a Canadian wants to open an enterprise here, the State will be unable to impose “treatment” on that investor less favourable than treatment accorded by Canada to investors, he said.

Mr Costello’s concerns include the “expansive” nature of CETA, he outlined. At this point, no one can envisage the final state of the multi-lateral investor tribunal, its scope or its powers. There is “no detail whatsoever” of its composition or procedure but, on ratification, Ireland will be bound by the outcome of whatever tribunal is produced.

The hearing is listed for four days.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times