Increased exports have played a major part in Ireland’s economic recovery. Of the approximately 135,000 people back at work, it is estimated that close to 50% have come directly from export earnings. Agreements that improve the access to markets for Irish enterprises are strongly supported, therefore, by Ireland.
With regard to the Canadian agreement, political agreement on the key elements was announced in October 2013, and the conclusion of negotiations were announced at the EU-Canada Summit on 26 September 2014. The agreement covers virtually every aspect of economic activity, and it is extremely important for Ireland. It offers significant opportunities for growth in trade with Canada.
The agreement is currently at the legal scrubbing stage. Once this phase is completed, it will have to be ratified by the parties involved, including all 28 EU member states. In Ireland’s case, this will mean a decision of the Houses of the Oireachtas. The ISDS mechanism in the Canadian agreement provides that the mechanism can only be invoked where there is a breach of fair and equitable treatment, meaning one of the following: denial of justice in criminal, civil or administrative proceedings; a fundamental breach of due process, including a fundamental breach of transparency, in judicial and administrative proceedings; manifest arbitrariness; targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief; and abusive treatment of investors, such as coercion, duress and harassment.
The Canadian agreement also makes clear that legitimate public policy measures taken to protect health, safety or the environment do not constitute indirect expropriation. Indirect expropriation can only occur when the investor is substantially deprived of the fundamental attributes of property. In Ireland, private property is protected by virtue of Article 43 of our Constitution. The Commission has confirmed that it is considering whether aspects of the EU-US trade agreement investment protection proposals could be incorporated into the EU-Canada agreement as part of the legal scrubbing process. However, any changes to the investment protection provisions would require the agreement of both the EU and Canada. A committee to be established under the investment chapter of CETA can consider whether and, if so, under what conditions, an appellate mechanism could be created under the agreement.