The Supreme Court allowed Patrick Costello’s appeal over the Government’s proposed ratification of the EU-Canada trade agreement CETA, finding that ratification in the proposed manner would be unconstitutional. Justice Aileen Power dissented, saying the agreement could be ratified without breaching the Constitution.
Power delivered her judgment on 11 November 2022 as part of a seven-judge court. She agreed with Chief Justice Donal O’Donnell’s reasoning and said the Government’s proposed action fell within its constitutional executive power over external relations. She would have dismissed the appeal.
The majority considered that provisions in CETA’s investment chapter could bind Ireland to pay compensation following decisions by an international tribunal, raising concerns about State sovereignty. Among the issues was whether investors could take disputes to a CETA tribunal instead of Irish courts and whether awards could be enforced domestically under the Arbitration Act 2010.
Power rejected the argument that this created a parallel jurisdiction or removed cases from Irish courts. She said a CETA claim would allege breach of an international agreement, while a domestic case would concern a breach of Irish law. In her view, Irish courts had no jurisdiction to decide whether CETA itself had been breached.
She also disputed the description of award enforcement as automatic. An applicant would need leave from the High Court, she said, and judges would decide such applications under the Constitution and Irish law. Power considered that the European Convention on Human Rights offered a relevant comparison: both systems allow international bodies to issue binding decisions concerning State conduct, although their enforcement mechanisms differ.
Power said CETA tribunals could not invalidate Irish laws or reverse final Irish court judgments. She also relied on provisions preserving the parties’ right to regulate for public policy objectives, including health, safety and environmental protection, and on routes to challenge an award where a tribunal exceeded its powers.
The judgment was one of several delivered in the appeal; Power’s conclusion was in the minority. She said the court was not deciding whether CETA was a good policy choice, but whether the proposed ratification was constitutional. She concluded it was. She added that, even if the majority’s concerns were accepted, amending the Arbitration Act in the manner proposed by Justice Gerard Hogan would cure the identified constitutional difficulty.