Comprehensive Economic Trade and Investment Agreement: A need to balance the competing interests

Photo credit: https://unsplash.com/s/photos/ceta

KEYWORDS: MTA - Multilateral Trade Agreements, FTA- Free Trade Agreements, CEJU, CETA, ICS, EU-US TTIP, Investor-state arbitration, TFEU, TEU

INTRODUCTION

CETA is the latest trade agreement between the EU and Canada. It is the result of long and protracted deliberations between the parties. It brings great benefits to the public by lifting barriers to trade like the elimination of custom duties, open and non-discriminatory access to the market, enhanced mobility for the employees, and a large variety of geographical indications for high–quality food products. There are. however, concerns regarding the new dispute resolution mechanism the CETA introduces. This article explores the extent to which these concerns are likely to materialise in light of existing EU norms and cases decided under the new dispute resolution mechanism. This article will first discuss the development of CETA and the route to its development, followed by an analysis of the European Perspective and conclude with the discussion of the Irish perspective on CETA.

Development of CETA

Economic growth and development, both necessary for fostering peace and cooperation, are induced and spurred by the conclusion of Bilateral Trade Agreements, MTAs and FTAs. These agreements contain dispute resolution clauses to deal with conflict that might arise with respect to their interpretation and application that might arise from the provisions of these agreements. IIAs and Investment contracts have evolved considerably from the inception of Calvo doctrine, which gave prominence to the interests of the hist state to protect its regulatory autonomy, with the modern form of regional agreements superseding the judicial, legislative and administrative interests of the Member States.

CETA is the latest wing in the feather, a largely successful regional cooperation agreement designed to advance economic prosperity, induce investment and spur employment, reduce barriers in trade, and enhance living standards in the participating states. Nonetheless, it is not directly applicable to Member States[1].

The Comprehensive Economic and Trade Agreement was signed in Brussels on 30th October 2016[2]. The negotiations between the EU and Canada that were undertaken prior to it were lengthy. It’s a mixed agreement with only some of its provisionally applied in the EU, with most of the agreement applicable and which also requires signature and ratification of not only the EU, but also that of its 28 members and regional parliaments. It hasn’t, however, fully entered into force yet given the politically and legally complex, and a time consuming process still to complete. Some Member States have not even begun the deliberation about CETA and others have also announced that they would not ratify the Agreement.[3]

CETA was first proposed back in 2009 and it was later dubbed as a sibling of the EU-US TTIP. Investment Court System provisions, as proposed by the European Commission in its TTIP Agreement, have been incorporated in the investment chapter of the CETA also referred to as legal scrubbing in February 2016. It has also been alleged that even after legal review of the investment chapter of the CETA there is very little evidence that a significant number of its widespread and legitimate concerns have been addressed. ICS Provisions only deal with reforms connected with judicial standards and most of the EPs reforms connected to the right to regulate have been largely ignored by the EU Commission.

On another note, Trade and Investment has been further deepened and broadened with the conclusion of the Comprehensive Economic and Trade Agreement (CETA). Because of its multifarious implications for companies in EU and Canada, it has been labelled as a progressive and the most ambitious agreement, thereby providing EU Exporters with enhanced access to the world’s most enhanced market.

From the perspective of contracting, it can be described as an agreement with enormous benefits for the public in the form of elimination of custom duties, open and non-discriminatory access to market, an enhanced mobility for the employees, and a large variety of geographical indications for high–quality food products. It put focus on the development of good standards, such as investment in a healthy environment, inducement of economic stability and social development.

It has been labelled as a gold standard of trade agreements and has been touted as the top priority of the EU Commission and Canada who is seeking its ratification since 2017. But it is not without its own faults.

Chapter 8 Section C and D of the Agreement concern dispute resolution mechanism. Investor-state dispute resolution has always been a point of controversy and Finbury argues in his work that the growth in these government mechanisms advances the interests of the economically powerful, while adversely affecting the regulatory functioning of the host state.

ISDS has been labelled as private justice, unfit for redressing public grievances as the arbitrators chosen would not be neutral with vested interests. There are concerns that a lack of knowledge of public international law and national law could lead to prejudicial outcomes of these arbitral cases, and consequently adversely impact on regulatory autonomy of the states. This argument is, again, limited and does not fully take into consideration the success of arbitration in ensuring that host states do not overregulate, guaranteeing transparency and providing equitable access to domestic remedies.

The European Perspective on CETA

The Court of Justice of the EU (CJEU) has opined that the arbitral institutions or courts external to the EU, in relation to the Agreements between EU, its member States and third countries can adjudge on aspects of EU law, provided the decision making complies with the following conditions as laid down in Opinion 1/17:

- The decision making shall not affect the primacy and direct effect of EU Law

The decision rendered by such a tribunal or a court should not affect the direct effect of EU law which is based on treaties, charters and other sources of primary and secondary law. It should not interfere with the uniform and effective application of the EU Law [4] and its implementation in varying legal systems of member states.

- Should not have a binding effect on the EU institutions and Member States

This requirement entails that the decision so rendered by such a judicial institution, and such an agreement establishing the institution should not vary the nature of the EU and the institutions’ powers, and the process for ensuring uniform interpretation of international treaties engaging an external judicial institution would not bind EU institutions, to the extent, in the exercise of internal powers, to the specific interpretation of EU Law, and as such both of these powers are essentially connected to the preservation of judicial powers of the CJEU.[5]

- Should not affect the final authority of the CJEU to interpret and apply EU Law[6]

Such an external judicial body can have a jurisdiction which may collide with the jurisdiction of the CJEU, but should not impede on the exclusive competences of the CJEU, which can be questioned by the CJEU - such as the right to provide definitive interpretation[7] and right to rule on the division of competencies within the EU[8],

- Should not affect the principle of mutual trust and cooperation.

Uniformity in interpretation and application would be ensured by the national courts of the EU Member States, which are responsible for its implementation. As a consequence, the principle of mutual trust and cooperation is established between CJEU and the national courts. Accordingly, the national courts are advised to, and sometimes indeed obliged to, refer their rulings to the CJEU for interpretation of EU law. It protects both the independence of CJEU and its dominance over interpretation of EU law and ensures that there is consistency and uniformity in the interpretation and application of the law.

- Should not affect the division of powers between EU, and its member states[9].

Decisions rendered by a tribunal or a court established by an international agreement should cover the subject matters falling within the ambit of the EU and its institutions. The exclusive power to determine when Canadian investors seek to challenge measures adopted by the Member States or/ by the Union resides with the CJEU and it is necessary that the framework established by that international agreement should not affect this structure.

The CETA, as opined by the CJEU, complies with the stated requirements as it forms a parallel forum for dispute resolution, it does not impinge on the final authority of the CJEU to render interpretation and application of EU Law, and applies EU law to the extent they concern the provisions contained in CETA. Even if the necessity of interpreting EU law arises, the CJEU will make use of ‘prevailing interpretation- referring to applicable or relevant case law’ of the respective norms and the CETA Tribunal does not have the authority to examine the ‘legality of EU measures’. Moreover, according to Article 8.31 (2) CETA, EU law and the domestic law of the member states have been excluded from its interpretation by the tribunals. Although Article 8.31(1) CETA provides that tribunals can interpret its provisions and those applicable under international law, the CJEU has not yet ruled whether arbitral tribunals can interpret and apply EU law’. It is thus worth the wait to see what the domestic approach of its member states might be or what course of action the CJEU will undertake to consolidate a position on this issue in the future[10]. At the same time, the court has taken a rather contradictory stance in determining if examining an effect of an EU measure amounts to interpretation and application of EU Law. CETA does not adversely affect the division of powers between the EU and its member states as it provides an automatic procedure for determining the respondent party if the proceedings are commenced by Canadian investors. In that procedure, the EU still retains the right to ascertain which EU Member State should be the respondent state[11]. From that perspective, it seems that CJEU considers that its jurisdiction to apply rules to division of powers coupled with limited interpretation by CETA is sufficient to sustain its dominance over the interpretation and application of EU Law.

Moreover, concerns about errors, potentially arising from interpretation and engagement undertaken in the ICS system under CETA, can be dealt with by the involvement of the CJEU, which ensures that the ICS does not usurp the final binding authority of the EU institutions to render decisions. This prevents difficult situations, similar to, for instance, the Iron Rhine case[12], where the arbitral tribunal incorrectly chose not to interpret and apply EU law using CILFIT[13] criteria..

Ostensibly, the CJEU is open to fact-based application and interpretation of EU Law, but there exists contradictory practice, as evidenced by the Achmea case. There, it excluded inter-state arbitration from the scope of Articles 267 and 344[14] of TFEU, because investment arbitration was held incompatible with the autonomy of the EU legal order. As follows, it put forth two types of arguments – firstly, that the EU cannot formally accede to the present ISDS rules, as these rules do foresee the probability of an international organisations to accede[15]. Secondly, that it lacked legitimacy and safeguards, presence of inconsistency and unpredictability of the case law[16], absence of possibility of review, high costs which reduces its accessibility to small and medium enterprises, and apparent lack of transparency.[17]CETA, however, envisages a system consisting of an ICS, which forms a part of the reformatory proposal put forth by the EU Commission in 2009, and as suggested by a Concept paper published in 2015.

Such reformatory measures required the inclusion of ICS clauses in each EU-level investment agreement. It is the first of many currently in the process of negotiation. The EU Commission estimates that 20 ICSs should be created by EU’s investment agreements with third countries in the near foreseeable time. [18] It would be compliant as it would ensure a single recourse to dispute resolution without having to impinge on the principle of mutual trust and cooperation and autonomy of the EU legal system, which forms its foundations. As it’s a mixed agreement, it has advantages of both worlds - of states preserving their autonomy to regulate, its consent to dispute and impartiality afforded by such a two-tier mechanism.

Another issue arises with respect to the fact that consistency, predictability and consolidation of case law can only be ascertained by the CETA Appellate Tribunal[19], which would require the CETA Tribunal to either follow the jurisprudence formed by the Appellate Tribunal, or to deal with inconsistent decisions rendered at the lower level in the hierarchy. Additionally, it remains unclear which rulings of the system could be regarded as a prevailing interpretation, more so in the case of the EU Law; it is also uncertain which institution would declare if an interpretation in a ruling is a prevailing interpretation in respect of that common subject matter, and accordingly determine the criteria for the ruling to prevail. This would create a more precarious situation when the CJEU is yet to provide an interpretation or two or more conflicting positions exist.

The above discussion on the challenges faced by the arbitral tribunals in implementing CETA within EU could be summarised by illustrating the example of Opinion 1/17, which had limited the impact of the entrenched pessimist viewpoints that the ICS shall not pass the test of autonomy and had iterated that the ICS mechanism does not impact the regulatory autonomy of the EU legal system[20]. It is evident from the ratio decidendi and obiter dicta of previous decisions r that the CJEU has become comparatively liberal, open to accepting the jurisdiction of international tribunal to directly interpret EU Law.

Another development with potential impact on the case is the conclusion of the Agreement for the termination of Bilateral Investment Treaties between Member States and the EU. However, Austria, Finland, Sweden and Ireland have not yet signed the Agreement, and it is yet to be seen how the defect of lack of uniformity would be dealt with by the signatory countries If fully placed in force, the ISDS mechanism will cease to have any effect.

Tribunals constituted under ICSID rules, which are established for considering intra-EU disputes arising from Energy Charter, have followed a different approach than that adopted by the EU Commission, and have expressly rejected the Achmea judgment. The reasoning was that the judgment was only applicable to bilateral investment treaties, and not multilateral investment treaties such as the Energy Charter.[21] Similarly, in P. L Holdings S.a.r.. l; v Republic of Poland [22], the arbitral tribunal awarded damages, but Poland challenged the award by stating that the arbitration clause in the BIT was invalid, referring to the Achema, before the Swedish Court of Appeal. The court rejected its claim, however, the Supreme Court upheld the proceedings and upon preliminary reference, it was reaffirmed by CJEU that arbitration clauses in BITs are invalid.

In 2019 the EU States[23] adopted three declarations that assert that the MSs should abandon concluding investment arbitration and instead focus on resorting to national courts; the importance of discourse in resolving disputes was further asserted[24]. However, Regulation No. 1219/2012 empowers the member states to keep intact the existing BITs between EU Member states[25].

Irish Landscape

A suit was filed by Green Party TD Patrick Costella in the High Court in Ireland, which was later on dismissed[26]. The suit asserted that the proposed dispute resolution mechanism usurps the regulatory autonomy of the state and would pose a hindrance and have a chilling effect on the State’s ability to bring legislation to regulate essential matters like the environment. He based his case on the reasoning that the investors' courts as established in Chapter 8 of CETA.

The bill concerning Ireland's accession and ratification of the bill in Ireland is still in gridlock in the Oireachtas Committee with the Green Party opposing the bill. It is peculiar to see because the bill asserts the supremacy of the CETA dispute resolution over that of the domestic dispute resolution system.[27] However, a counterargument could be made that the provision deals with limited areas as mentioned in SECTION C and D. Moreover, with hardly any international dispute having arisen the fear is not completely realistic in the light of preamble which reaffirms the member states right to regulate in public interest[28], provided they formulate clear and transparent regulation, they can regulate in legitimate public interest areas such as: public health, social services, public education, safety, environment, public morals, privacy, data protection, promotion and protection of data privacy. It clearly tries to strike a right balance between the protection and promotion of investors and rights and legitimate welfare objectives of the EU Member States and Canada. They affirm that they do not aim to lower the respective standards, and regulations in relation to food safety, product safety, consumer protection, health, environment, and labour standards. Additionally, through the joint interpretative statement they clarify that they renew their commitments undertaken in various international agreements, but it remains to be seen how their renewed commitment is visible in practicality. However, it’s a mere instrument of interpretation in the sense of Article 31 of the VCLT. The joint declaration issued, along with 38 other statements and declarations issued could possibly have an impact on CETAs ratification process. As analysed by Guillaume Van der loo in his article, It does not alter the agreements textual content, but only provides a guidance as to how the provisions should be interpreted[29].

The regulatory cooperation, however, as envisaged in the agreement and clarified through the join interpretative agreement is merely voluntary in nature, and thus the benefits that may flow from such cooperation is not guaranteed till the states actually undertake steps to communication their regulatory, and administrative work, which if taken seriously can help in increasing efficiency of regulation.

In addition to the above, under Article 8.6 of CETA it has been clearly stated that any genuine effort on part of the signatory to regulate in order to promote its legitimate policy objectives, then in such case, the measure in question may not in violation of CETA under this provision, even though it has an adverse effect on the investment, and negatively interferes with investors expectation. This reasoning could be used by a host-state in case of any dispute that might arise in the future. Furthermore, the investors have also been given due consideration with respect to their rights under Articles 8.6 to 8.8 of CETA, Article 8.10, 11 and 13, which elaborate on the IIA guaranteed protections such as the National Treatment and Most-Favoured Nation clause, fair and equitable treatment, expropriation, and freedom from restrictions on payments and capital transfers and other forms of money.

The limitations posed by the creation of an ICS mechanism under CETA could be cured by: a) the inclusion of the CJEU through preliminary reference procedures, expanding the scope of what constitutes a court under TFEU and modify its case laws[30] to include an international tribunal, as it is indeed established by international law as a distinct autonomous institution vested with exclusive compulsory jurisdiction to deal with investment disputes inter partes; [31]b) by envisaging prior engagement of the CJEU in the ICS Mechanism through a special process for which the CETA will have to provide a basis for such an obligation to refer the cases to the CJEU, if it did not have a chance to rule on EU Law applicable to the relevant case at hand. The mechanism envisaged in the second option would help in circumventing the “court or tribunal of the Member State”, ICS would make a reference to the CJEU on the basis of CETA, and not Article 267 TFEU. Prior involvement through a special mechanism would be similar in its purpose to the one envisaged as a preliminary reference, however, both having distinct origins, and legal basis. Notably, prior studies and recommendations were conducted, and this mechanism included the EU Accession Agreement to the ECHR, and in the study conducted for the ISDS provisions in various international investment agreements, and as such is not a novel solution[32].

CONCLUSIONS

Reform of any governance style requires focus on institutional design and organisational capacities, and on how the norms, values and implementation structures are affected by them by ensuring the order and harmonisation to build meta-governance.

The CJEU has asserted that the intra-EU investor-state arbitration is incompatible with the regulatory autonomy of the EU regulatory framework. A contradictory approach to the position of the EU as a subspecialised regional system and its compatibility with international law to ensure uniformity. The aforementioned approach comprises several possible defects. The ICS tribunals may not be prevented from interpreting the EU law both from the perspective of law as a matter of fact. It may also not be hindered from applying the law in the sense of prevailing interpretation, and as such an error in interpretation could form precedent, and inducement for prospective proceedings. The position of the Commission in the submission of relevant cases could further be in a superior position as compared to the investors.

The issue highlighted in the article emphasises that Trade and Investment, as an area of exclusive competence raises points of contention about the separation of powers between the EU institutions and the Member States, especially in light of asserted authority gradually bestowed since the Lisbon Treaty, as foreign direct investment is now a part of common commercial policy, an exclusive competence of the EU. However, as the agreement is of a mixed character, it will likely give rise to a series of conflicts[33].

There are conflicting principles in legislative and judicial assertion about Investment arbitration as such, and it is yet to be seen how the opposing views would be best accommodated in the case of the CETA.

Furthermore, it is a known fact that EU law is a complex web of different treaties and legislations whose provisions are left purposefully incomplete and vague as a result of the difficulty in bringing new legislation in different subject areas, challenges in amending the existing treaties, and agreeing on the detailed provisions of the agreement. It, therefore, becomes a prerogative for the CJEU to render coherent and consistent decision interpretation about the scope and extent to how these new forms of investment courts can render their decisions engaging EU law without affecting the integrity of EU Law, and the principle of mutual trust on which the EU legal system is based.

References:

[1] Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part OJ L 11, 14.1.2017, p. 23–1079. Chapter 30, Article 30.1.

[2] Comprehensive Economic and Trade Agreement (CETA) of 30th October 2016 between the European Union and its Member States, of the one part, and Canada on the other part, OJ 11, 14.1.1. 2017.

[3] Sisto, A. and Jones, G., 2018. Italy says it won't ratify EU-Canada trade deal; Canada plays down threat. [online] Reuters. Available at: <https://www.reuters.com/article/us-italy-canada-trade-idUSKBN1K318Q> [Accessed 23 February 2022].

[4]CJEU, Opinion 2/13 Accession of the EU to the ECHR [2014] EU:C:2014:2454, paragraphs 165 to 167 C-284/16; Slowakische Republik v. Achmea BV [2018] EU:C:2018:158, paragraph 33

[5] Van Rossem, J. W. (2012). The EU at crossroads: a constitutional inquiry into the way international law is received within the EU legal order. In Cannizzaro, E., Palchetti,, P. and Wessel, R. ed., 2012. International law as law of the European Union. Martinus Nijhoff Publishers.

[6] Mox Plant at Sellafield, Ireland v United Kingdom, ITLOS Case No 10 (Official Case No) ICGJ 343 (ITLOS 2001) para. 123; Opinion 1/09 Case 1/09 Celex No. 62009CV0001 paras. 67-76; Opinion 1/91, paras. 30-35; Opinion 2/13, 170-183) “In these cases, the CJEU has blocked EU ‘s international agreements by rendering its dispute settlement provisions incompatible with the EU law, and has ruled that an international court could exist alongside the EU System only if it had no adverse effect on the autonomy of the EU legal order. The CJEU was mainly concerned whether the power of these international tribunals interfered with its exclusive competences such as: power related to division of powers within the EU, and interpretation and application of EU treaties. The treaty provisions for the basis of these exclusive powers are: Article 19 (1) TEU, which authorizes that the CJEU ensures law in the interpretation, and application of laws, while Article 344 expands on the obligation of the member states to not submit their disputes concerning treaties other than the dispute settlement mechanisms provided for in the EU treaties itself. Although there remains a theoretical possibility for these independent mechanisms to exist.” See (Opinion 2/13, Supra note 4 at para. 182).

[7]Supra note 4 at para 247

[8] Opinion of the Court of 14 December 1991. Opinion delivered pursuant to the second subparagraph of Article 228 (1) of the Treaty - Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area, Opinion 1/91EU: Case 1/91 Celex No. 61991CV0001, paras 38-46, Opinion 2/13, supra note 4 at paras 221-225,

[9] Materljan, I. (2020) “INVESTMENT COURT SYSTEM UNDER CETA AND THE AUTONOMY OF EU LAW”, EU and comparative law issues and challenges series (ECLIC), 4, pp. 181–220. doi: 10.25234/eclic/11901 181.

[10] Grigonis Simas. (2019) “Investment Court System of CETA: Adverse Effects on the Autonomy of EU Law and Possible Solutions “, 5 International Comparative Jurisprudence, 134, page 130.

[11] Rules for ascertaining which EU Member States are to be regarded as respondent states are provided in, Regulation (EU) No 912/2014 of the European Parliament and of the Council of 23 July 2014 establishing a framework for managing financial responsibility linked to investor-to-state dispute settlement tribunals established by international agreements to which the European Union is party OJ L 257, 28.8.2014, p. 121–134.

[12] Refer paras 103, 121-123, 137 of Iron Rhine Iron Rhine Arbitration, Award of 24 May 2005 in case Belgium v. Netherlands by Permanent Court of Arbitration in Hague. Joined cases 28 to 30-62, Da Costa en Schaake NV, Jacob Meijer NV, Hoechst-Holland NV v Netherlands Inland Revenue Administration [1963] EU:C:1963:6.

[13] CLIFIT Srl v Minister of Health (Case 283/81) [1982] ECR 3415. In this case, the CJEU developed a principle named acta claire, which was initially used by French Conseil de etat to avoid the obligation to submit the p[reliminary reference to the CJEU

. [14] Article 267 TFEU provides for preliminary reference procedure, while Article 344 states that the Member States undertake not to submit disputes concerning interpretation and application of the Treaties to any Method of Settlement other than those provided for in the treaties.

[15] European Commission. (2010). Communication: towards a comprehensive European international investment policy, Brussels, 7.7.2010, COM (2010)343 final Communication at p. 10.

[16] It would mean that only the Appellate Tribunal could consolidate set of precedents, and that when in presenting the evidences EU Commission as the protector of the EU treaties would be given more weightage with plethora of resources and expertise available at its disposal, and this in turn would palace parties to the dispute at unequal levels.

[17] European Commission. (2015). Concept paper: Investment in TTIP and beyond - the path for reform, 1-12. Retrieved from http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.PDFat pp 1-3.

[18] European Commission. (n.d.-b). Negotiations and agreements. Retrieved August 16, 2019, from https://ec.europa.eu/trade/policy/countries-and-regions/negotiations-and-agreements/

[19] Moreover, as has been analysed by various authors, the CETA does not envisage any role for the CJEU or of its institutions in resolution of investment disputes. That is why the solutions have been proposed in this instant article.

[20] (Opinion 1/17 para 161)

[21] ICSID, Case No. ARB/ 13/31, Antin Infrastructure Services Luxembourg Srl and Antin Energia Ter- mosolar BV v Kingdom of Spain; ICSID, Case No. ARB/12/12, Vattenfall AB and others v Federal Republic of Germany; ICSID, Case No. ARB/14/1, Masdar Solar c Wind Cooperative UA. v. Kingdom of Spain; ICSID Case No.ARB/13/36, Eiser Infrastructure Limited and Energia Solar Luxembourg Sarl v. Kingdom of Spain; ICSID, Case No. ARB/14/3, Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic

[22] Hagsta Domstolen, Republiken Polen v. PL Holdings S.A.R.L., Begiran om farhandsavgarande den 12 december 2020, T 1569- 19, available at: [https://www.italaw.com/sites/default/files/case-documents/ italawl1099.pdf], accessed 20. June 2020

[23] It was signed and issued by the Republic of Denmark, Republic of Bulgaria, Republic of Belgium, Republic of Czech, Germany, Greece, France, Estonia, Ireland, Italy, Spain, Croatia, Latvia, Cyprus, Lithuania, Poland, Portugal, Romania, Slovakia, United Kingdom of Great Britain and Northern Ireland. Declaration of the Representatives of the Governments of the Member States of 15 January 2019 on the legal consequences of the Judgment of the Court of Justice in Achmea and on Investment Protection in the European Union, available at:[https://ec.europa.eu/info/sites/info/files/businessecon-omy-euro/banking-andfinance/documents/190117-bilateral-investment-treaties-en.pdf], accessed 20. June 2020.

[24] Declaration of the Representatives of the Governments of the Member States of 15 January 2019 on the legal consequences of the Judgment of the Court of Justice in Achmea and on Investment Protection in the European Union, available at: [https://ec.europa.eu/info/sites/info/files/businesseconomy-euro/banking-andfinance/documents/190117-bilateral-investment-treaties-en.pdf], accessed 20. June 2020

[25] Regulation (EU) No 1219/2012 of the European Parliament and of the Council of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries, [2012] OJ L 351.

[26]IRISH TIMES https://www.irishtimes.com/news/crime-and-law/courts/high-court/high-court-dismisses-ceta-challenge-by-green-party-td-patrick-costello-1.4675783 (Last visited March 8 2022)

[27] Article 15 and 34 of the Irish Constitution, 1937.

[28] Section 2 and 3 of Joint Interpretative Instrument on the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its Member States

[29] G.Ven Der Loo, ‘CETA’s signature: 38 statements, a joint interpretative instrument and an uncertain future’, CEPS, Published on 31st October 2016, https://www.ceps.eu/ceps-publications/cetas-signature-38-statements-joint-interpretative-instrument-and-uncertain-future/ #_ftnref2

[30] The concept of what constitutes a court or a tribunal is dependent on a variety of factors, as has been indicated by the CJEU in Dorsch Consult, some of which are: whether it is established by law, it is permanent, its jurisdiction is compulsory, its procedure is inter partes, it applies rules of laws, and is independent; Dorsch Consult para 23. Definition of a court has been envisaged under Article 267 (2) TFEU.

[31] Article 8.23, 8.27, 8.28 CETA.

[32] Directorate-General for External Policies of the EU, Pernice 2014, p. 162. Pemice, I. (2014). Part III: Study on international investment protection agreements and EU law. In Study: Investor-State dispute settlement (ISDS) provisions in the EU's international investment agreements. Volume 2 - Studies (pp. 132-169). European Parliament, Directorate-General for External Policies of the Union.

[33] The position of the EU is that it has the exclusive competence to conclude agreements on behalf of its members was affirmed in Opinion 2/15, para 305.