That is well covered. This legislation is about the enforcement of any awards at international level and that is what the constitutional problem was in the Costello case. The judge in the Costello case has said that if the Government wishes to ratify CETA, it will have to change the Arbitration Act and here is a way, the judge suggested, the Government could do it. We have considered that carefully. We have read the judgments as a whole and we have taken the Attorney General's advice. In that context, we drafted th…

He did not say that we have to do it.

That is a fundamental point.

The Senator has accused me of being in a fantasy here. The reverse could be argued to be true as well. She talked about stratospheric awards. That is the vista in front of us if we are to pass this legislation. She has moved on the debate now because she has lost the question on the right to regulate. She is saying that the State can regulate-----

That is changing the foundations of the argument. The Senator is not saying what some Senators said, namely, that we would not be able to regulate these things. What she is saying is that if we do, we will get fined. I have outlined at length-----

Not everybody has said that.

I have not said that.

The Government has not said that. The CETA agreement says the opposite, as does the CETA joint interpretative instrument. The European Court of Justice said the opposite. All the legal advice said the opposite. On the companies the Senator mentioned, it is very unfortunate that we have started to bring individual companies into the debate as if they are some threat to the State. I do not know those companies or who they are, but it is not fair to mention them in the Seanad as some kind of threat to the State. The l…

Yes, but the Irish law would apply for them too.

The terms under which people invest in this country are the laws of the land, trade agreements that are relevant to their particular operations or maybe their place of operation. They are the terms. The trade agreement in this case and the other cases that would come in under this legislation specifically point to the fact that the State can continue to regulate. I can say with 100% confidence that no Government decision has ever considered whether there is a regulatory chill on the Government because of the Canada…

There is a risk analysis.

The risk is that we would collapse the agreement if we do not ratify it.

On the Energy Charter Treaty, again, what is happening here in this House is a conflation of two different systems. The system we are debating under CETA has been specifically designed with the experience under the Energy Charter Treaty and other agreements fully in mind. The Government has a regulatory impact assessment and it is publicly available to anybody. There are no costs to the State arising from CETA. In a case where it is determined that there has been a material breach, the ICS could require a state to …

All I can say is that we are dealing with two different animals and the second one has been created and devised because of the experience of the previous one. I will quote from the regulatory impact analysis: ... the State’s exposure to economic loss cannot be regarded as materially impacted arising from the introduction of the ICS mechanism provided for within CETA, and especially given the already existing recourse inward investors from any jurisdiction have [in] the domestic courts. Furthermore, it must be noted…

I was asked about the regulatory impact assessment and-----

What is being continually thrown in every contribution is that this is completely incorrect. What Senators are basing it on is on a different system. They are basing it on something that is not only not in the text of CETA and the various documents and court decisions surrounding it, but the very opposite of what they are saying is written in black and white in CETA, the interpretative instrument and court decisions, including our own Supreme Court decisions.

I cannot put it any further.

The amendment appears to be based on the premise that somehow these investor courts, and, indeed High Court decisions, would lack transparency. This is not the case. CETA and similar agreements ensure transparency of proceedings for full public scrutiny. All substantive materials, including the request, the written submissions by the party, the decisions of the first instance tribunal and-or appeal tribunal will be publicly available. Hearings will be open to the public. Interested parties, that is, NGOs and trade …

As I stated previously, with the help of the Attorney General, the Government has carefully considered the Supreme Court’s findings in the Costello case, and the legislation sets out the response, including specification of the grounds on which an award is not enforceable. The Senator’s amendment seeks to amend and expand what are carefully considered positions. I note that the Senator's amendment goes into the detail of the legislation, and the premise of the amendment actually accepts what we are trying to do.

The premise of the amendment accepts what we are trying to do. The Senator just wants to improve it. The procedure in relation to the new section 25A would follow the 2010 Act and the relevant rules of court. For these reasons, we are unable to agree to amendment No. 18.