Paul Murphy Challenges Investor Court System in CETA Debate

Thanks a lot, and thanks Tanaiste. Just to start, you were at pains to emphasise that companies currently can take states to court for discriminatory measures and other things, and I agree that's an accurate summation of the current situation of the law. So why is it then that corporations need to have access to parallel justice mechanisms? Why can't they just pursue things through the regular court? Well, they can. They can still pursue cases through the national courts, but the idea of having an investment court system is that it makes it easier and more simple for companies to get justice if they've been discriminated against. So in the European Union, we have 27 member states with different court systems, different legal systems, and then courts at a subnational level, similar in Canada, and this simplifies things and makes things much easier. So that if an Irish company has been discriminated against and has been unfairly treated, that they can get justice in a way that's quicker and more transparent, and that's the thinking behind it. And particularly when it comes to future trade agreements, for example, we may do trade agreements with countries other than Canada, where we're less confident that their court systems would treat us fairly. And that's where I think an international system can be helpful. And just to clarify, let's say a normal citizen in Ireland felt that they were discriminated against by a Canadian company. Would they be able to go to these investor court systems? Well, no, they can't. No, it's just for corporations. So it's a parallel justice system just for corporations. Just to move on, you were very explicit repeatedly, and I'd just like you to clarify that the only basis on which a Canadian company could sue the Irish state in the investor court system is on the basis of if it was discriminated against. Is that your position? No, there are a number of grounds that I outlined earlier, and they are denial of justice in a criminal or civil administration proceeding. I don't need to read them out, but I read them out earlier. You did state on a couple of occasions, the only way that they could sue is if they were discriminated against. So you accept that's not the case. They would not have to be discriminated against on the basis of not being European in order to be able to access the investor court system and potentially win against the state. They have to establish that they've been treated unfairly and inequitably. And I've set out in my earlier remarks as to exactly what those grounds are, and I can go through the joint interpretive instrument as well, which explains exactly exactly what that is. These are all forms of discrimination in my view. But the point being, again, I think if we go through the opening statement and we obviously don't have this before us that you repeatedly stated, it would only be on the basis of discrimination. But it's not the case. And so just to read Article 812 of CETA and is that a party shall not nationalize or expropriate a covered investment either directly or indirectly and indirectly. Let's remember, basically involves any sort of regulations that interfere with the right to profit, having an effect equivalent to nationalization or expropriation except a for a public purpose, b under due process of law, c in a non discriminatory manner and d on payment of prompt adequate and effective compensation. So a Canadian company could make the case that it has been indirectly expropriated by a significant labour or environmental regulation, even if it affects all companies, regardless of Canadian or European, because it hasn't been compensated is not the case. No, they could argue it, certainly, but I don't think they'd be successful in any court making that case. There is no right to profit contained in this in this agreement or treaty. And what you read out there sets out the grounds very clearly as to where government could nationalize something that provision provides for nationalization. But does what does say that where nationalization occurs, owners have to be compensated. And of course, that would be the case. Anything else would be confiscation. But just to move on, you again were pains to emphasize that the chances of Ireland being successfully sued by a Canadian company are very low. You're aware, presumably, that there is currently about a thousand Canadian corporations taking cases in investor state dispute settlement processes against states around the world. And they're engaged. They're like very much engaged in what Joseph Stiglitz described as litigation terrorism. I think that's that's a pretty extreme remark. People will litigate for all sorts of different reasons. So citizens do companies do. I don't know the exact number of Canadian companies that are currently involved in litigation. But as I would point out and pointed out earlier, this is before CETA is ratified. So the idea that somehow ratifying CETA allows corporations to litigate, it makes no sense. It's absurd because, of course, as you pointed out, there are hundreds or thousands of cases underway already. Just to clarify for you, Tanishda, what I'm talking about, these are all cases that are being taken in investor state dispute settlement mechanisms. So outside of the normal court process, precisely in the kind of process that's being set up by CETA. So I presume you would agree that the U.S. is a state. Are these in the European Union? Yes, some of them are. For example, Eco Oro is sorry. No, one Canadian mining company is suing Romania for almost six billion dollars for interfering with its mining rights. Another corporation is suing Croatia for removing its illegal permits given for a golf course. But you referred that we effectively will have protection. These things are happening already. But investors dispute settlement, not in regular courts. That's not where that's taking place. But presumably you'd agree that the U.S. is a state where you have the rule of law and so on, which is one of the things that you said would protect us. Are you aware that the Canada-based company TC Energy is suing the U.S. government, again in an investor state dispute settlement process, for 15 billion dollars after the Biden administration cancelled the Keystone XL pipeline project? Yeah, I'm not aware of the detail of the case, Deputy, but it sounds like another red herring. This is a Canadian company suing the United States. This has nothing to do with CETA. Correct. What it's to do with is an investor dispute, this investor state dispute settlement mechanism, which is what is provided for in CETA, which is the main reason that people are opposing it. To be very concrete, take the case of... Did you actually say already that these exist already in the European Union? You mentioned a Romanian case. Yeah, but they are under other treaties which exist where countries are parties to these other dispute settlement mechanisms. For example, the Energy Charter. There's nothing particularly new in CETA in that regard. This is an expansion. So let's give a concrete case. The case of I-Res REIT, which is owned by a Canadian company. Do you not accept or are we not going to be in a position in a few years time if we sign up to CETA where we will be saying, OK, we need rent controls to bring rents down to an affordable level. And you, if you're still in government, hopefully not at that time, will say not only, oh, it's unconstitutional. But you'll also say if we do that, we may be sued for indirect expropriation by the company that owns I-Res REIT in the investor court system. And it will be used precisely for regulatory chill to say that our hands are tied. We can't do that because we'll be interfering with that. We'll be engaging in indirect expropriation, which an indirect expropriation is defined extremely broadly. I think there's two things there, Deputy. First of all, is whether or not it's constitutional. And that's a separate question. Sure, exactly. It will have to be determined by the Supreme Court, presumably. The second question is, would there have to be compensation in those circumstances? I think any company could argue that, not just a Canadian company like I-Res. Any company could argue in such a scenario that this represents confiscation or expropriation, and that case would have to be heard. Whether it's Canadian or not, I think is not the point. If I just finish on this question, but the point being they could sue us, not in the Irish courts, but in this special investor court system, which, as you've accepted, is a parallel justice system simply set up for corporations. That would be a consequence of us signing up fully for Zeta. Very briefly answered. They could sue us in either, Deputy. Correct. Correct. So it's another avenue. Your time is up, unfortunately. You first have to die, Deputy. Thanks, Representative? Two, please, thank you Sarah. Thank you, Mayor Ke del. You're putting in this. There's no מ thing you have to make a difference. It's fine. Two, please, thank you very much. Thank you. I'mukur Crider and I want to move in.