Published on Saturday 8th March
Sir, – I would like to respond to the issues raised by David O’Sullivan concerning non-ratification of the Canada-EU trade agreement (Ceta) in his piece “Causing EU crisis over Canada trade deal would be mistake for Ireland” (Opinion & Analysis, March 1st).
Mr O’Sullivan is correct in identifying the proposed investor court system (ICS) as one of the main sources of concern arising from Ceta ratification. It is interesting to note that the trade benefits that he refers to since the provisional application of Ceta have been achieved without an ICS system in place.
It is true that the proposed ICS marks an improvement on previous investor-state models but, when all is said and done, it will still be a system outside of national and EU law which gives, depending on which side of the Atlantic Ocean the claim arises, Canadian and EU investors their own special tribunals – misleadingly referred to as “courts”. While the European Court of Justice concluded that the chapter on investment disputes was compatible with EU primary law, it was not making any judgment on the desirability or risks arising from such a system.
In the chapter on investment and regulatory measures, Ceta reaffirms the right of states to regulate for legitimate policy objectives, such as public health, safety, environment, etc, and further states that the mere fact that a party regulates in a manner that negatively affects investors’ expectations does not amount to a breach of that section. However, in the same chapter when it comes to compensation claims, ICS can take into account the investors’ profit expectations arising from its interactions with a state or its statutory bodies. In short, the right to regulate does not protect a state from potentially very expensive claims that might arise from non-regulatory actions taken to promote a public interest.
Moving to the final section of the opinion piece, it should be said that opposition to the ICS part of Ceta has nothing to do with obstructing better working relationships with Canada. Irrespective of the merits of the Canadian state as set out in his article, when it comes to a claim against an Irish authority by a Canadian investor, the above-mentioned merits will be irrelevant. Sean O’Shea’s letter (“A Canadian view on Ceta trade deal”, March 4th) is a reminder that many sections of Canadian civil society do not welcome Ceta.
Would Ireland saying “no” to Ceta cause an EU crisis? It is possible for the provisional application to remain in place until suitable amendments are agreed. This should not be difficult as Canada itself has chosen to exclude itself from the investor-state dispute settlement provisions (ISDS, known as ICS in Ceta) in the recent United States-Mexico-Canada agreement.
Finally, the information provided about David O’Sullivan describes him as a former EU ambassador to the US; however, it should also have included the fact that he works as a senior counsellor with the legal firm of Steptoe and Johnson, a company that offers services in the field of investor-state arbitration. – Yours, etc,