German energy company sues Netherlands for €1.4bn over coal ban plan

The Philips-Morris Australia case is always held up as a boogieman when conversation turns to corporations suing governments but Phillips-Morris not only lost the case, $50m costs were awarded against them. The courts aren't that divorced from reality that such a case would succeed.

The anti-CETA reaction is also overblown, in my opinion. The offending treaty provision is there to prevent the abuse of "foreign companies" by insisting that commercial rules and laws are non-discriminatory. The idea is prevent the sort of stuff that happens in places like China - where for example, the government reserves the right to appoint board members for "foreign owned" companies but not for local ones or imposes lower minimum wage or work standards standards on Chinese companies as a sort of subsidy. CETA's dispute settlement procedure is a mechanism for companies to complain that they're being treated in a discriminatory manner compared to local competitors. Clearly since such a complaint will be about a local law, to which local courts are bound, a third party arbitration process is needed. Nearly all treaties which allow cross-border investment have clauses like this.

And dispute settlement decisions under CETA don't override national law. Most treaties have such provisions and the loss of a case generally just leads to years of haggling between the countries affected. The Boeing, Airbus WTO spat is typical - it's just commercial mud-wrestling that doesn't impact individuals' rights.

"Yes, we are subject to several supra-national legal systems. These have all been agreed to following a referendum to allow them."

You're not looking at this the right way. Ireland is a member of a huge number of supra-national/international bodies - all of which impose rules or conditions on members - as well as being party to countless bilateral treaties which also constrain the behaviour of the government. Only a tiny fraction of them required referendum.

Joining an international body or entering an international treaty only requires a referendum if the rules of the organization or contents of the treaty are incompatible with the constitution. This very rarely happens because obviously Ireland will tend to join organisations and bodies with which it shares values. So in the vast majority of cases, the supra-national legal rules are compatible with our constitution and so no referendum is required. And actually in most cases, they are actually compatible with our laws and not even legislative changes (passed in the Dail in the usual way) are required.

At the end of the day the Irish legal system has primacy in Ireland. And the Irish legal system and constitution are controlled by the Irish electorate and no international treaty or membership changes this. There's nothing stopping the electorate changing laws or the constitution regardless of international obligations. For example, Ireland could re-introduce capital punishment, which would be incompatible with our membership of the Council of Europe. Just because we've signed a membership treaty, doesn't mean that the Council of Europe has the power step in and nullify an Irish referendum or government legislation which is incompatible with the treaty. They could kick Ireland out of the club though.

The anti-CETA and general anti-trade activists would have you believe that international commercial dispute settlement agreements somehow give big business immunity from local laws when this is simply not the case. As usual, the reality is far less lurid and outrageous than presented by such activists. It's actually all very mundane. Like I said, look at the Boeing vs Airbus WTO case to see how these things generally work.

"The problem with provisions such as these are destabilising to a small country like Ireland. The big corporations with deep pockets can tie up Ireland in court cases forever, and the threat of such cases can delay needed provisions of public policy for years."

You could say that about allowing anyone to sue the state. It's a cornerstone of western liberal democracy that the state can be challenged through an independent judicial branch. A legislature makes laws; the state, as an entity, like everyone else, is accountable to the laws.

You could argue the cervical check legal battle also "delayed needed provisions of public policy" but is that enough of a reason to not allow the affected access to the courts?

And I don't see any better alternative. Screening people or companies before allowing them access to the courts, isn't a runner. You can't single out "big corporations" for special restrictions against suing the state but not have restrictions apply to "medium sized companies", SMEs or individuals. It couldn't work - either the freedom to sue the state is available to everyone or no-one.

I still don't understand your fear? Can you provide an example of big corporations using the dispute resolution clauses of bilateral or multilateral agreements to subvert public policy, so I could understand why you think CETA presents a threat? All the stuff you listed are examples of failures of corporations to override public health initiatives.

Yeah but none of that answers the question:

"Can you provide an example of big corporations using the dispute resolution clauses of bilateral or multilateral agreements to subvert public policy, so I could understand why you think CETA presents a threat?"

None of the cases you mentioned so far resulted in a corporation "winning" against a government - the opposite in fact. Phillip Morris were ordered to pay $40m in costs when they tried to block plain packaging in Australia - a judgement actually upheld by the WTO a few years later when a bunch of tobacco growing countries tried to use the WTO's trade dispute resolution mechanism. 3 major Pharma companies have gone bankrupt because of their despicable role in the opioid crisis and executives have been given prison sentences. This all seems reasonable to me and looks like a legal system doing what you'd want it to do?

The IBM anecdote doesn't sound right - if you hide documents after being order to disclose them by a judge, then someone is going to jail.

"Add that the tribunals that decide these cases are not subject to Irish Domestic Law"

You keep repeating this despite me pointing out and explaining why this is simply not true. Irish domestic law is supreme in Ireland - it's just that simple.

No company can rock up with a positive judgement from a trade dispute tribunal and demand that it have precedent over Irish legislation or over Irish common law.

The High Court has ruled on a challenge against ratifying CETA - https://www.rte.ie/news/courts/2021/0916/1247115-ceta/

The conclusion is along the lines of what I've been arguing:

"However, Ms Justice Nuala Butler found CETA did not entail an unconstitutional transfer of the State’s sovereignty.

She found it was an international agreement which did not have direct effect in Ireland and that tribunals established by CETA would not have jurisdiction to declare any provision of Irish law invalid.

Justice Butler also found that it was constitutionally appropriate and permissible for the State to ratify the agreement without a referendum."