A dispute dividing the Green Party over a Dáil vote on a Canada-EU trade agreement (CETA) has the potential to inflict a damaging defeat on the Government and jeopardise legislation requiring ratification in every member-state parliament.
The argument has its roots in long-running, and once-justifiable, Green and leftwing MEPs’ concerns over unaccountable, secretive mechanisms – special courts – for protecting investor rights when enacted trade deals need to be interpreted. But it is now a cause largely won, whose champions refuse to recognise that they are fighting a phoney war.
Critics of CETA's investor court system (ICS) claim that it gives multinational companies the right to sue governments who curtail their freedom of action as investors with environmental, health and workers' rights regulations. They cite the case of tobacco giant Philip Morris which sued the Australian Government for "unjust confiscation" of its trademarks and intellectual property when the Australian parliament passed a law mandating plain packaging on cigarette boxes.
But Philip Morris sued under the previous investor protection regime, which contained no express exceptions for public health measures or acknowledgement of the state's right to regulate. And it was unsuccessful. CETA's new, radically different, ICS, transparent and replacing investor court members with nominees of Canada and the EU, includes an article guaranteing the right to regulate for public policies. CETA also sets a high bar on expropriation, in line with international law, and in the requirement of "fair and equitable treatment" of investors.
Such changes to the court were embraced by both the EU and Canada as CETA was finalised, not least, as Green Senator Pauline O’Reilly points out, “in large part due to the work of our MEPs and activists across Europe, and they have changed the deal to an extent that cannot be ignored”. ICS critics must now explain how they would instead structure what is indispensible to any treaty – a mechanism for its interpretation.