The Supreme Court will hear final arguments on Thursday on a significant appeal by Green Party TD Patrick Costello over the dismissal of his challenge to the planned ratification of aspects of the EU-Canada trade deal known as Ceta.
After hearing three days of argument in the appeal in late March, the court, having considered the submissions, sent a series of questions to the sides who provided detailed additional submissions.
The court will hear supplemental oral arguments on Thursday after which it is expected to reserve judgment.
The cases raise significant and important questions of law in respect of the State’s adherence to international treaties with binding tribunal mechanisms.
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After losing in the High Court last year, Mr Costello secured a leapfrog appeal — one direct to the Supreme Court. The appeal was prioritised because the proposal to ratify the Comprehensive Economic Trade Agreement (Ceta) of 2016 remains pending before Dáil Éireann and due to the important issues raised.
The Dublin South Central TD brought the case against the Government, Ireland and the Attorney General on foot of concerns including about the constitutionality of provisions in Ceta for “investor courts” to decide complaints by Canadians who invest in EU member states.
It was argued there is no limit on the value of compensation which may be awarded under the investor tribunal system; neither it, nor an appellate tribunal, will be composed of judges appointed under the Constitution and ratification could adversely affect regulation here, particularly in the environmental sphere. The State, Mr Costello argued, could be made liable for damages for loss suffered by a Canadian investor as a result of Irish environmental regulation.
The ratification of Ceta would entail an unconstitutional transfer of important elements of the State’s sovereignty to institutions such as tribunals created by Ceta and a vote of the people via referendum would be required to ratify Ceta, he argued.
The High Court found Ceta will operate only at the level of international law and, as a result, its provisions could not be characterised as laws in breach of Article 15.2 of the Constitution.
Ms Justice Nuala Butler held, that while the Ceta tribunal may have characteristics of the administration of justice, its jurisdiction was not contrary to Article 34.1 of the Constitution as the disputes it would decide upon were not justiciable under Irish law. However, she agreed with the TD the ratification of the deal was not something necessitated by virtue of obligations of membership of the EU.
In agreeing to hear the appeal over that judgment, the Supreme Court said the issues raised are of general public importance which, potentially, “could have legal impact in a number of sectors”.
Significant issues regarding state sovereignty and the administration of justice are raised, it said. Identification of the proper workings of Ceta tribunals and analysis of the role they would, or might, play under the provisions of the Constitution are issues of “considerable significance”.
The court will address costs issues following the outcome of the appeal. The respondents sought to cross-appeal the High Court’s order directing them to pay half of Mr Costello’s High Court costs of his failed challenge for reasons including the importance of the issues raised.
