The Supreme Court allowed Patrick Costello’s appeal in a challenge concerning the proposed ratification of the EU–Canada Comprehensive Economic and Trade Agreement (CETA), according to Justice Peter Charleton’s dissenting judgment. Charleton J agreed with Justices Dunne, Baker and Hogan that CETA constituted a clear disregard of the Constitution. He disagreed with the majority’s view that an amendment to the Arbitration Act 2010 might resolve the problem.
The judgment, delivered on November 11, 2022, was one of several in the case. Charleton J wrote that his analysis should be read after the other judgments. His dissent focused on CETA’s investor dispute system, under which a Canadian investor could bring a claim before a CETA tribunal and seek an award enforceable in Ireland. The treaty also provides for an appellate tribunal and gives the CETA Joint Committee power to adopt interpretations binding on those tribunals.
Charleton J’s concern was that broad treaty principles, including fair and equitable treatment, could acquire more detailed legal meaning through tribunal decisions and Joint Committee interpretations. He said this process could develop rules affecting Ireland without the Oireachtas having enacted them, and could allow a CETA tribunal to reconsider issues after Irish court proceedings. Those points were his analysis of the treaty’s operation, not findings about a particular investor claim.
The other judges’ proposed legislative remedy was to amend the 2010 Act to give the High Court wider discretion to refuse enforcement of a CETA award on constitutional grounds. Charleton J considered that inconsistent with CETA’s requirements for recognition and enforcement. He also argued that, if CETA were fully ratified and became an EU obligation, the duty to enforce awards would leave Irish courts without that discretion. He questioned whether a treaty protocol allowing such refusals could be compatible with the agreement and international law.
The judgment does not state that CETA had been ratified or brought into force. Charleton J’s conclusion was that the appeal should be allowed because of the constitutional issue, while rejecting the proposed legislative solution. The source supplied here is his dissenting judgment; it does not set out the complete operative order of the Court or the majority’s full reasoning.