The Supreme Court has begun hearing an appeal brought by Green Party TD Patrick Costello over the constitutionality of aspects of the EU-Canada Comprehensive Economic and Trade Agreement (Ceta) trade deal.
His appeal from the High Court, which bypassed the Court of Appeal, is against the Government of Ireland, Ireland and the Attorney General.
Last September the High Court’s Ms Justice Nuala Butler dismissed Mr Costello’s challenge, saying she was satisfied he had not established that the ratification of the 2016 Ceta in the manner proposed would be “clearly unconstitutional”.
Chapter 8 of Ceta, the focus of Mr Costello’s case, provides for investor protection and the establishment of an investment court system aimed at resolving disputes between investors and EU member states. 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.
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The Dublin South Central TD claims that the ability of these investor tribunals to decide on complaints by Canadians who invest in the State involves an unconstitutional transfer of sovereignty and national judicial power.
On Tuesday Mr Costello’s counsel, John Rogers SC, told the seven-judge court this was the “most important” case it will hear this year regarding the constitutional rule of law in the State.
Mr Rogers submitted that the State cannot authorise the treaty “without the mandate of the people”.
At the core of the appeal is the “issue of sovereignty”, with Ireland set to lose its “sovereign immunity” in respect of Ceta claims if the trade agreement is affirmed, he said.
‘Significant awards’
If ratified, Canadian investors in Ireland will have a choice to pursue a claim against the State through the Irish courts or through the Ceta tribunal mechanisms, which will have the power to make “significant awards”, said Mr Rogers. With the latter option, issues of State liability for State measures that affect these investors will move from a national to an international level and decisions will be binding, counsel added.
While acknowledging that the State sometimes consents to mediating individual issues through international arbitration that could otherwise travel through domestic courts, Mr Rogers emphasised the “habitual submission to a foreign jurisdiction” of dispute settlements under Ceta.
Ceta is primarily a trade treaty designed to reduce tariffs and increase trade between the EU and Canada. It came into force provisionally in 2017, but all national parliaments in EU countries need to ratify the deal before it can take full effect.
The case continues on Wednesday before the Chief Justice, Mr Justice Donal O’Donnell, Mr Justice John MacMenamin, Ms Justice Elizabeth Dunne, Mr Justice Peter Charleton, Ms Justice Marie Baker, Mr Justice Gerard Hogan and Ms Justice Ann Power.
