CETA: Is this how the republic dies?
BARRY FINNEGAN unravels the intricacies and implications of the EU’s proposed Comprehensive and Economic Trade Agreement (CETA) with Canada and its Investor Court System that could cost the Irish taxpayer tens of billions of euro. The Investor Court System (ICS) is the European Commission’s rebranded version of a private legal system designed to empower foreign companies to sue governments for corporate rights which they have been granted under the terms of an international trade and investment-protection agreement. CETA is one such agreement. This corporate legal system, known more commonly as Investor-State Dispute Settlement (ISDS), has been in use since 1957 in around 2,400 ‘trade’ agreements. Under ISDS/ICS, the foreign company does not challenge a government’s right to regulate in the public interest, it simply sues for all the ‘lost’ future unearned profit they must forgo when a host government’s laws, regulations or licencing decisions reduce their ‘legitimate expectation’ of future profit.
Only 15 of the 27 member states’ parliaments have voted for CETA’s ICS so far and it is being argued over in a protracted constitutional case in Germany The EU Council of Ministers and the European Parliament have already voted to approve the adoption of the parts of this EU-Canada deal - the Comprehensive Economic & Trade Agreement (CETA) - which covers trade and tariffs, and these parts have been in law since September 21st, 2017. What the EU could not do is to take the final decision to approve CETA’s proposed investment-protection mechanism called the ICS, the Investor Court System. In a case lost by the European Commission, the Court of the Justice of the European Union (CJEU) ruled that EU member states have the final say over this aspect of political life. To subject the whole EU to this private legal system, all 27 member states must approve it; in Ireland, that means a vote in the Dáil. Under the ICS of the CETA deal, countries can regulate, yes, but it is the prohibitive and unmanageable cost of regulation in the public interest that is one of the primary anti-democratic problems with CETA. 38
• Sinn Féin Senator Lynn Boylan’s case against the government over CETA is to be heard, possibly early next year
The British Government has cut and pasted the text of CETA into the new Canada-UK Trade Continuity Agreement (Canada-UK TCA). There is an agreed three year window within which to renegotiate the text after which time the CETA and its ICS will apply. This has implications, for example, for the citizens of the Sperrin Mountains in County Tyrone. Community groups are campaigning to save the water table from the toxic waste they predict will come from a proposed gold mine planned by the Canadian-based mining company Dalradian Resources who have acquired 120,000 hectares of land in the area. Sinn Féin councillors have tabled motions opposing the scheme. One of the key problems here should the ICS of the Canada-UK TCA be adopted, is that if there was ban on gold mining resulting from the proposed Planning Appeals Commission public inquiry, Dalradian would be able to sue the UK at the ICS for their future ‘unearned profit’ lost because they had a ‘legitimate expectation’ to mine for gold. Similarly, if the Dublin government distorted the ‘housing market’ with a meaningful rent cap and brought property prices down through the provision of tens of ISSUE NUMBER 4 – 2021 - UIMHIR EISIÚNA 4 anphoblacht
