The ECJ verdict is that the ISDS/ICS of CETA is not illegal under EU law, as long as the EU maintains existing levels of protection of the public interest.
Because of the ICS of CETA, there is a legal requirement under EU and member state law for each EU member state government to vote on CETA in their national parliaments. As the ICS (ISDS) of CETA could result in the Irish state being charged or fined, the Constitution requires the Dáil to approve it under Article 29.5.2, prior to its adoption. ‘Arbitrators’ adjudicating on investor claims are under no legal obligation to take Irish, EU or international law and regulations into account.
However, the ECJ says that ISDS/ICS is illegal in Intra-EU trade deals.
Some EU member states made ‘ISDS-like’ trade and investment agreements with each other prior to one or both of them joining the EU.
An investor from a member state with no previous ISDS trade and investment agreement would have less rights operating there.
Other organisations and reviews say that ISDS/ICS is immoral and that it may be illegal.
The organisation ClientEarth says ISDS “may not be compatible with EU law”. They say many of the
matters they considered important were not looked at by the European Court of Justice (ECJ). Their report mentions that an ISDS/ICS system would enable foreign investors to sideline the EU courts and resort to claims that are not available to domestic investors. The German Law Journal writes that The EU-national investor will never receive in a ruling from a judge in the EU, all their ‘lost’ future unearned profit. A Canadian investor could be awarded all their unearned ‘lost’ future profits by an arbitrator at the investment court of the CETA.