Friday, November 11, 2022

High Court reporters

The Supreme Court has by a majority ruled that the State’s proposed ratification of the Comprehensive Economic and Trade Agreement (Ceta) between the EU and Canada is unconstitutional as Irish law now stands.

Seven Supreme Court judges issued individual judgements in the case, which was livestreamed on Friday, with many diverging findings regarding elements of the appeal brought by Green Party TD Patrick Costello.

It will set aside the order of the High Court, which had dismissed Mr Costello’s case against the Government of Ireland, Ireland and the Attorney General.

A four-to-three majority of judges held that the Constitution precludes ratification of Ceta as Irish law now stands.

A six-to-one majority held that certain amendments of the Arbitration Act, 2010, would, if effected, permit ratification of Ceta without breaching the Constitution.

The court was told during the March hearing that “sovereignty” was at the heart of the appeal, with the Dublin South Central TD expressing concerns about the constitutionality of provisions in Ceta for “investor courts” to decide complaints by Canadians who invest in EU member states.

It was submitted the State cannot authorise the treaty “without the mandate of the people”, by way of a referendum.

Last year, Ms Justice Nuala Butler dismissed the Dublin South Central TD’s case, satisfied he had not proved the ratification of the 2016 Ceta deal in the manner proposed would be “clearly unconstitutional”.

Investor disputes

Mr Costello’s case focused on Chapter 8 of Ceta, which 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 the establishment of investments by Canadian investors here.

He claimed the capacity of these tribunals in deciding complaints by Canadians who invest in Ireland involves an unconstitutional transfer of sovereignty and national judicial power.

During the hearing, his counsel, John Rogers SC with Eileen Barrington SC, instructed by FP Logue LLP, said this was the “most important” case the court would hear this year regarding the constitutional rule of law in the State.

The State parties argued Ceta was an international treaty governed by international law and does not constitute the making of law by this State.

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 judgments were delivered by the Chief 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.

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