Dr John Cotter, Lecturer in Law, Keele University, UK
The EU-Canada Comprehensive Economic and Trade Agreement (CETA), signed on 30 October 2016 following five years of negotiations, was in retrospect concluded at a pivotal moment in the history of EU trade policy. Though trade policy might not have been the most salient issue in the Brexit referendum earlier that year, prominent Brexiters nevertheless sought to make hay from the EU’s torpid progress in concluding trade deals with third countries, arguing that a nimbler post-Brexit UK would be free to conclude and ratify trade agreements at a faster pace. Less than a month later, in November, Donald Trump won the US Presidential election, which would ultimately put paid to the prospect of completion of the Transatlantic Trade and Investment Partnership (TTIP). Of course, those with a reasonable grasp of EU trade law and policy knew that the signature of CETA marked only the end of the beginning; as a mixed agreement (ie both the EU and its Member States were parties), CETA would require ratification by not only Canada and the EU, but also by all EU Member States. Political opposition, as well as anticipated constitutional and other legal challenges, meant that ratification by all Member States might be a drawn-out affair and was by no means certain.
CETA was approved by the European Parliament on 15 February 2017 and ratified by Canada on 16 May 2017. To date, sixteen current EU Member States have notified the European Council of ratification. On 21 September 2017, in accordance with Council Decision 2017/38, most of the agreement was afforded provisional application. However, several key provisions of the agreement were excluded from provisional application. Of relevance to this blogpost, key provisions of Chapter 8 (investment) were excluded; in particular, those relating to the new Investment Court System (ICS). This ICS comprises a permanent arbitration tribunal (the Tribunal) and an Appellate Tribunal. The Tribunal, which will consist of fifteen members appointed by the EU-Canada Joint Committee established to oversee the application of CETA, will hear and determine claims by investors that a party to CETA has breached certain obligations under the agreement which has resulted in financial loss to the investor. Where a claimant investor is successful, the Tribunal may award compensation, with the parties, including of course EU Member States, being required to recognise and comply with any award without delay. However, execution of any award domestically will be governed by the laws concerning execution of judgments or awards in the state in which execution is sought. It is worth mentioning that an application for execution of a Tribunal award would not have to be brought before courts or tribunals of the defendant state; enforcement could be sought in any state which is a party to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID).
As expected, CETA attracted legal challenges, with the ICS being an especial bone of contention. The most notable of these was in Opinion 1/17, in which the Court of Justice, sitting as a full Court, upheld the compatibility of CETA with EU law in the face of concerns expressed by Belgium that, among other things, the ICS might be incompatible with the autonomy of the EU legal order. In March 2022, the German Bundesverfassungsgericht upheld the constitutionality of the provisional application of CETA, though the constitutionality of the ICS in Germany remains an open question. On 11 November 2022, a majority of the Supreme Court of Ireland ruled that ratification by Ireland of CETA as matters stand would be unconstitutional.
Facts, arguments, and the Irish constitutional context
The constitutional challenge to CETA in Ireland was brought by Patrick Costello TD, a Green Party member of the Dáil (the lower house of Ireland’s parliament, the Oireachtas). Pursuant to Article 29.5.2˚ of Bunreacht na hÉireann (the Constitution of Ireland), any international agreement which involves a charge on public funds must be approved by the Dáil in order for that agreement to be binding on the State. Mr Costello argued, however, that CETA could not be ratified by the State without an amendment to the Constitution, which would require a referendum. It was submitted on behalf of Mr Costello that CETA involved the otherwise unconstitutional transfer of legislative and juridical power of the State over to institutions established by CETA. As regards legislative power, it was argued that CETA provided rule-making powers to the CETA Joint Committee which amounted to a power to make laws which would be binding in Ireland in contravention of Article 15.2 of the Constitution, which vests sole and exclusive law-making powers for the State in the Oireachtas.
With respect to juridical power, it was contended that the ICS established under Chapter 8 of CETA would be contrary to Article 34.1 of the Constitution, which provides that “[j]ustice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution”. This juridical power within Ireland held exclusively by Irish courts would be infringed because CETA in conjunction with domestic legislative provisions in the Arbitration Act 2010 would require Irish courts to give virtually automatic effect domestically to awards made by CETA Tribunals. Mr Costello was unsuccessful before the High Court, where Butler J took the view that CETA would bind the State as a matter of international law only and that any decisions of the CETA Joint Committee could not be characterised as laws made for the State within the meaning of Article 15.2. Butler J also held that the disputes to be determined by the CETA Tribunals did not constitute the “administration of justice” within the meaning of the Constitution and therefore would not interfere with the powers of the Irish courts in that regard.
Central to this case in every sense is the concept of sovereignty. Ireland’s history and the anxieties of the framers of Bunreacht na hÉireann leap forth from the constitutional text. The preamble refers to “heroic and unremitting struggle [of our fathers] to regain the rightful independence of our Nation”. The very first article asserts the “inalienable, indefeasible, and sovereign right [of the Irish Nation] to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.” Article 5, with reference to the State, declares that Ireland is a “sovereign, independent, democratic state.” These assertions are given mechanical form in various provisions throughout the Constitution which confer the sole and exclusive law-making power for the State on the Oireachtas (Article 15.2) and the administration of justice in courts established by law (Article 34.1). Consistent with this protectionist approach to sovereignty, Article 29 also establishes that Ireland adopts a dualist approach to international law obligations. Those with pre-existing knowledge of Ireland’s history in the EU will be aware of these facts. In order for Ireland to join the then EEC in 1973, which involved the ceding of some sovereignty, and of legislative and judicial power in the State to European institutions, a referendum had to be held in 1972 to approve the requisite amendment to Article 29. In 1986, when the Irish government sought to ratify the Single European Act sans a constitutional amendment, lawyers on behalf of Raymond Crotty in Crotty v An Taoiseach were successful in convincing the Supreme Court that an international agreement involving the cession of external sovereignty would require a further amendment to the Constitution and, therefore, a referendum. Europe has had to hold its breath while awaiting the results of a number of Irish constitutional referendums since. Mr Costello was evidently hoping to add another chapter to that story.
Supreme Court judgments
Hogan J in his judgment opined that the appeal before the Supreme Court “may yet be regarded among the most important which this Court has been required to hear and determine in its almost 100-year history” (para. 9). The appeal also resulted in a deeply divided court, with each of the seven judges authoring substantial (and in some cases lengthy) judgments which require close examination to reveal the ratio of the case. Mercifully, the judges were able to whittle the appeal down to six issues, set out in the judgment of Dunne J (para. 13):
i) Whether ratification of CETA was necessitated by the obligations of membership of the EU.
This had been an argument advanced on behalf of the State in the alternative to the assertion that CETA could be ratified utilising normal processes under Article 29. All seven judges (O’Donnell CJ, Dunne, Hogan, Charleton, McMenamin, Power, and Baker JJ) rejected what one suspects was a rather half-hearted argument, ruling that EU membership did not necessitate ratification of CETA.
ii) Whether CETA amounted to a breach of Article 15.2 of the Constitution (sole and exclusive law-making power of the Oireachtas).
It had been submitted on behalf of Mr Costello that CETA would involve interference with the law-making powers of the Oireachtas for the State. In this regard, Mr Costello’s lawyers pointed to the jurisdiction of the CETA Tribunals to make awards against the State for losses suffered by an investor as a result of the operation of a provision of Irish law, arguing that the threat of such awards would create a ‘regulatory chill’ which might prey on the minds of Irish law and policy makers. The Supreme Court was divided on this question, with the majority (O’Donnell CJ, Dunne, McMenamin, Power, and Baker JJ) ruling that CETA would not amount to an interference with the law-making powers of the Oireachtas. Hogan and Charleton JJ, dissented on this point, with the former pointing in particular to the fact that CETA provides for a “form of strict liability on the part of the State in respect of legislation which is found to be contrary to CETA and insofar as it does not contain a good faith defence” (para. 14).
iii) Whether the creation of a CETA Tribunal amounted to the creation of a parallel jurisdiction or a subtraction from the jurisdiction of the courts in Ireland contrary to Article 34 of the Constitution (conferral of ‘administration of justice’ in courts established under the Constitution).
In essence, the issue amounted to whether one viewed the CETA Tribunal as a body which would hear and determine disputes which were purely matters of international law (not constitutionally problematic) or whether it amounted to a body which would (or could) become involved in disputes that might otherwise have been heard and determined in Irish courts (possibly constitutionally problematic). Again, the Supreme Court was divided on this issue, with the majority (O’Donnell CJ, McMenamin, Power, and Baker JJ) of the view that CETA did not involve the impermissible withdrawal of disputes from the jurisdiction of Irish courts. Dunne, Hogan, and Charleton JJ differed on this point, though the former two judges pointed to the fact that their chief constitutional objection in this regard arose from the fact that the judgment of a CETA Tribunal would be, in Hogan J’s words, “virtually automatically enforceable” in Ireland (para. 15).
iv) Whether the ‘automatic enforcement’ of a CETA Tribunal award by virtue of the enforcement provisions of CETA in conjunction with the provisions of the Arbitration Act 2010 is contrary to Article 34 of the Constitution.
As Ireland is a dualist state, an award granted by an international tribunal will not enjoy automatic enforcement in Irish courts unless such enforcement is provided for specifically under Irish law. In the absence of such a domestic law, therefore (unless one takes the view that the primacy of EU law or the principle of sincere cooperation under Article 4(3) TEU would require enforcement of CETA awards domestically), CETA awards would not be enforceable in Ireland. However, sections 24(1) and 25(3) of the Arbitration Act 2010 give force of law in Ireland to the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) and ICSID respectively. CETA in turn provides that awards made by the CETA Tribunals are awards for the purposes of the aforementioned international law instruments, meaning that following ratification, CETA Tribunal awards would, save in very limited circumstances, be automatically enforceable in Ireland. Automatic enforcement of CETA Tribunal awards would raise a constitutional difficulty in that it would effectively confer the final decision in a dispute concerning the ‘administration of justice’ within the meaning of Article 34.1 to an international tribunal rather than the Irish courts. On this point, a majority of the Supreme Court (Dunne, Hogan, Charleton, and Baker JJ) held that the virtual automatic enforcement of CETA Tribunal awards in the State would be a violation of Article 34. The reasoning of Hogan J was particularly interesting in this regard; borrowing apparently from the jurisprudence of the German Bundesverfassungsgericht, Hogan J found that the combination of CETA and the 2010 Act would mean that the Irish courts “would have no power to refuse enforcement even where the award compromised Irish constitutional identity or constitutional values in a fundamental way or where it was inconsistent with the requirements of EU law” (my emphases).
v) Whether the effect of the interpretative role of the CETA Joint Committee and its role are a breach of Article 15.2 of the Constitution.
Article 25 of CETA allows the CETA Joint Committee to make interpretative decisions which are binding upon the CETA Tribunals. A question arose as to whether these interpretative decisions would constitute an interference with the sole and exclusive law-making function for the State of the Oireachtas under Article 15.2. On this issue, the majority of the Supreme Court (O’Donnell CJ, Dunne, McMenamin, and Power JJ) held that that interpretative role of the CETA Joint Committee was constitutionally permissible. Again, the dissents (Hogan, Charleton, and Baker JJ) were noteworthy. Hogan J, in particular, opined that CETA Joint Committee interpretative decisions amount to “a form of quasi-legislation” which in practice would involve a de facto amendment of CETA without the constitutionally mandated prior consent of the Dáil under Article 29.5.2˚ (para. 17).
vi) Whether an amendment to the Arbitration Act 2010 to alter the ‘automatic enforcement’ of a CETA Tribunal award would allow ratification of CETA without an amendment to the Constitution and attendant referendum.
The majority of the Supreme Court had held that ratification of CETA would be unconstitutional owing to the fact that CETA Tribunal awards would be virtually automatically enforceable arising from the interaction of CETA and the Arbitration Act 2010, which would constitute an interference with the constitutionally defined jurisdiction of the Irish courts. One might be forgiven therefore for concluding that ratification of CETA would require a constitutional amendment and a referendum. The Supreme Court, however, took it upon itself to signpost a less complicated way out of the quandary. Hogan J suggested that amendments to the Arbitration Act 2010, which would empower the Irish courts to refuse to give effect to a CETA Tribunal award (on the grounds of Irish constitutional identity or obligations under EU law), would cure the unconstitutionality identified by the majority of the Court (paras 228-237). All of the judges of the Court, save for Charleton J agreed that Hogan J’s prescription would cure the unconstitutionality (or be constitutionally permissible, in the case of those judges who saw no unconstitutionality in the first place). Charleton J’s “ultimate dissent” posited the view that the suggested amendments to the 2010 Act would be ineffectual since the primacy of EU law flowing from Ireland’s obligations to the EU under Article 29 of the Constitution would render it impossible to refuse to enforce a CETA Tribunal award on grounds such as Irish constitutional tradition (para. 62).
Viewed formalistically, the Costello case is purely about the Constitution of Ireland, not CETA itself or indeed, in a direct sense anyway, EU law. There is certainly more than enough in the Supreme Court judgments to engage Irish constitutional scholars for another century. However, the judgments of the Supreme Court have much of interest to say to trade and investment lawyers, as well as EU lawyers, and it is on these points that I will focus my observations.
In order to assess constitutionality, the judges had to analyse the CETA agreement and in many cases make assumptions about its likely operation. In examining the possible effects of CETA on Irish legislative and juridical sovereignty, Hogan J, for instance, took what might be described as a precautionary approach in entertaining (perhaps remote) hypotheticals in which CETA Tribunal awards might result in inhibiting the formulation of legislative policy by the Oireachtas. Hogan J also identified the interpretative role of the CETA Joint Committee as potentially quasi-legislative in nature, with the possibility that this role could be used to effect de facto amendments to the text of CETA. Ironically, it may be the historic expansive interpretation of the EU Treaties by the CJEU, some of which have arguably amounted to de facto textual amendments, that have led to some fear about international or supranational institutions using interpretative powers to change the nature of an international agreement beyond what was ratified at national level. O’Donnell CJ, in contrast, seemed to take a much more sanguine approach to how international agreements like CETA operate in practice and to show concern for what an overly cautious and sovereigntist approach might have on the ability of the executive to conclude international agreements. On a related note, while Hogan J’s suggested constitutional cure was accepted by a majority, Charleton J maintained forcefully that the primacy of EU law would nullify the effect of any such amendments. In the perhaps unlikely scenario that it transpires that Charleton J is correct on this point, it could result in a situation where CETA was ratified by Ireland based on a misapprehension on the part of the majority of the Supreme Court on the nature of the CETA enforcement obligations. This is a conceivable prospective mess that might have been avoided by a preliminary reference to Luxembourg.
The stinging criticism by Hogan J (a former Advocate General at the Court of Justice) to the CJEU’s approach to CETA in Opinion 1/17 is also notable. Although keen to point out the differing constitutional contexts, Hogan J identified what he saw as weaknesses in the CJEU’s reasoning. Taking a position more defensive of legislative and juridical sovereignty (or autonomy) Hogan J rejected, for instance, the CJEU’s notion that only repeated awards of damages by the CETA Tribunals could impact EU or national regulatory legislation and policy making. Hogan J pointed also to the fact that the CETA Tribunals could in practice disregard CJEU jurisprudence and that there would be no remedy in EU or national law for such disregard, a matter the judge believed to be a “significant structural weakness” in the drafting of CETA.
Likewise of note in the judgment of Hogan J is the appearance of the idea of Irish constitutional identity and constitutional values. Seemingly drawn from the terminology of Karlsruhe, this is the first time that such phraseology has appeared in an Irish court judgment. It should be noted, however, that the use of the terms is limited to the enforceability of CETA Tribunal awards in the State. There is no suggestion that such concepts could be utilised to justify non-compliance with obligations flowing from EU membership; indeed, Hogan J made it abundantly clear that if ratification of CETA were required by obligations arising from EU membership that would have overridden any other possible constitutional objection.
As a final remark, the Supreme Court judgments were received with some fanfare by opponents of CETA on the day of their publication. While they are of major legal significance, they – in reality – place little in the way of legal obstacles to the ratification of CETA in Ireland.