AN CHÚIRT UACHTARACH  
THE  SUPREME  COURT  
Record  No: S:AP:IE:2021:000124  
 [2022]  IESC  44 
O’Donnell  C.J 
MacMenamin  J. 
Dunne  J.  
Charleton  J. 
Baker  J.  
Hogan  J. 
Power  J. 
 
BETWEEN/  
 
PATRICK  COSTELLO  
APPELLANT   
AND  
GOVERNMENT  OF IRELAND,  IRELAND   
AND  THE  ATTORNEY  GENERAL  
RESPONDENTS   
 
 
JUDGMENT  of Mr. Justice  Gerard  Hogan  delivered  on the 11th  day of November  2022   
 
 
 
 
 
 

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Table of Contents  
 
Part  I: Introduction  ................................ ................................ ................................ .................  3 
Part  II: Scope  of the appeal ................................ ................................ ................................ ..... 9 
Scope  of the appeal  and the constitutional  review  by this Court  ................................ ...........  9 
The standard  of review,  Article  29 and international  relations  ................................ ............  11 
The appellant’s  standing  ................................ ................................ ................................ ...... 13 
Part  III: The CETA  investment  tribunals  ................................ ................................ ...........  14 
The composition  and jurisdiction  of the CETA  Tribunal  ................................ ....................  14 
The duration  of CETA  ................................ ................................ ................................ .........  19 
Part  IV: Whether  ratification  of CETA  is “necessitated  by the obligations  of 
membership  of the European  Union”  for the purposes  of Article  29.4.6  .........................  20 
Part  V: The jurisdiction  of the CETA  Tribunals  ................................ ................................  24 
The jurisdiction  of the CETA  Tribunals  ................................ ................................ ..............  24 
Review  by a national  court  under  the ICSID  Convention  ................................ ...................  31 
Part  VI: Whether  ratification  of CETA  would  imperil  the sovereignty  of the State,  
contrary  to Article  5 of the Constitution ................................ ................................ ..............  38 
The jurisdiction  of CETA  tribunals  to interpret  the domestic  law of the State  ...................  38 
The jurisprudence  of the Court  of Justice  in respect  of legislative  autonomy  .....................  39 
CETA  Opinion  1/17................................ ................................ ................................ ..............  42 
Part  VII: The potential  implications  of CETA  for legislative  sovereignty  .......................  51 
Part  VIII:  Whether  CETA  Tribunals  would  compromise  the juridical  sovereignty  of the 
State,  contrary  to Article  34 of the Constitutio n ................................ ................................ . 59 
Article  34.5.6  of the Constitution:  The Historical  Context  ................................ ..................  59 
Article  34.5.6:  The Contemporary  Understanding  ................................ ..............................  62 
Would  accepting  the jurisdiction  of the CETA  Tribunals  amount  to a breach  of Article  5 of 
the Constitution?  ................................ ................................ ................................ ..................  67 
Part  IX: Accession  to the European  Court  of Human  Rights  and the European  
Convention  of Human  Rights  Act 2003  ................................ ................................ ...............  77 
Part  X: Other  specific  constitutional  provisions  dealing  with  the ................................ ..... 80 
administration  of justice  by trans -national  bodies  ................................ .............................  80 
Article  29.2 ................................ ................................ ................................ ..........................  81 
Article  29.4.6  ................................ ................................ ................................ .......................  83 
Article  29.7 ................................ ................................ ................................ ..........................  85 
Part  XI: The Jurisdiction  of the Joint  Committees  ................................ ............................  86 
Part  XII:  Overall  Conclusions  ................................ ................................ .............................  90 
Summary  of Conclusions  ................................ ................................ ................................ ..... 91 
Part  XIII:  Curing  the unconstitutionality  ................................ ................................ ...........  93 
 
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Part  I: Introduction  
Introduction  
1. The emergence  of investor  tribunals  is one of the striking  developments  in international  
trade  law over the last 50 years  or so. These  tribunals  – which  nowadays  are a common  
feature  of either  bi-lateral  or multilateral  trade  agreements  – are generally  empowered  
to rule on the question  of whether  a host country  has, by its laws,  judicial  decisions  or 
executive  actions  complied  with certain  standards  and requirements  specified  in the 
relevant  trade  agreement  itself.  A review  of tribunal  awards  involving  a range of coun-
tries over the last few decades  shows  that many  of the awards  relate  to matters  such as 
the withdrawal  of tax privileges,  the nationalisation  of industry,  far-reaching  price  con-
trols,  environmental  regulation  or the award  or cancellation  of gove rnment  contracts,  
permissions  and licences  and the like.  
2. The claims  themselves  are generally  brought  by large  and well-resourced  commercial  
entities.  It is not unknown  for such investor  tribunal  awards  to be very substantial,  
sometimes  running  to hundreds  of millions  of US dollars  and even  in a few instances  
over a billion  US dollars.  Thus,  for example,  following  the decision  of the German  
Bundestag  in August  2011  to phase  out nuclear  energy  power  plants,  a Swedish  state-
owned  company  which  had significant  shares  in two nuclear  plants  in Germany  brought  
a claim  before  such a tribunal  under  the terms  of the Energy  Charter  Treaty  for some  
€4.7 billion  in damages.  It seems  that that claim  was ultimately  settled  in November  
2021  for the sum of  €1.4 billion  following  a series  of important  rulings  from  that tri-
bunal:  see Vattenfall  AB v. Federal  Republic  of Germany , ICSID  Case  No. ARB/12/12:  
see “Ballantyne,  “Vattenfall  saga at an end”  Global  Arbitration  News , 12 November  
2021.  
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3. With  perhaps  one other  exception  dating from  the Energy  Charter  Treaty  (1994),  this 
State  has never  previously  provided  for or participated  in a treaty  allowing  for investor  
tribunals.  This is the issue  which  now squarely  arises  in this appeal,  as the Canada -EU 
Comprehensive  Economic  and Trade Agreement  (“CETA”)  provides  for such tribunals  
(“CETA  Tribunals”).  It is envisaged  that the CETA  Tribunals  will have  the power  to 
make  binding  arbitral  awards  against  Ireland  (along  with,  as the case may be, the Eu-
ropean  Union,  the other  26 Member  States of the Union  and Canada).  In the case of 
Ireland,  these  disputes  will arise  from  the application  of the general  public  law of this 
State.   
4. It is important  at the outset  to be clear  regarding  what  this case is about  and what  it is 
not about.  It is not about international  trade  or investment,  because  these  are (and will 
remain)  a fundamental  feature  of our economy.   Ireland’s  prosperity,  living  standards  
and general  reputation  as a modern,  open,  outward -looking  State  all rest on interna-
tional  trade.  
5. Nor is it about  Canada,  one of the other  partners  to the CETA  agreement.  One may take 
judicial  notice  of the fact that Canada  is a trusted  partner  of Ireland  and the European  
Union  and few (if any) countries  live up to the ideals  of the United  Nations  Charter  
better than Canada.  The Canadian  legal  system  is rooted  fundamentally  on the rule of 
law and its judicial  system  is widely  admired  and greatly  respected.  The appeal  is not 
even  about  CETA  itself,  the great  bulk of which  is wholly  unproblematic.  Rather  the 
appeal focuses  entirely  on the role of the special  CETA  investor  tribunals  which  Chap-
ter 8 of CETA  proposes  to call into force.   
6. CETA  was itself  laid before  Dáil Éireann.  It is envisaged  that the appropriate  resolution  
approving  that Treaty  will be submitted  to that House  (but by that House  alone)  for 
approval  in accordance  with Article  29.5.2  of the Constitution.  This is considered  to be 
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constitutionally  necessary  as adherence  to that Treaty  involves  a charge  on public  
funds.  Armed  with that (anticipated)  Dáil resolution,  the Government  now proposes  to 
ratify  CETA  by simple  executive  act. I should  add that, as Dunne  J. has already  detailed  
in greater  length  in her judgment,  the bulk of the rest of CETA  (i.e., apart   in particular  
from  Chapter  8 dealing  with investor  tribunals)  has already  been  provisionally  in force  
since  the 21st September  2017  in the manner  permitted  by Article  30.7(3)  CETA.  
7. The ultimate  question  which  now arises  is whether  this is constitutionally  permissible  
or whether  the ratification  of an agreement  providing  for the establishment  of a tribunal  
with a binding  jurisdiction  to pronounce  on State  liability  arising  from  the general  pub-
lic law of this State  would  compromise  our juridical  sovereignty,  contrary  to Article  5, 
Article  34.1 and Article  34.5.6  of the Constitution.   
8. One of the reasons  why this case is such a difficult  one is that the proposed  investor  
tribunals  sit somewhere  – in perhaps  a slightly  ill-defined  position  - between  regular  
international  commercial  arbitration  on the one hand  and a permanent  international  
court  enjoying  a binding  and enforceable  jurisdiction  on the other.  In some  respects,  
the tribunals  have a sort of chameleon  like quality  which  means  that they possess  fea-
tures  of both models.  And herein  lies the difficulty:  there  is, of course,  no constitutional  
issue  with regular  international  commercial  arbitration,  whereas  the participation  by the 
State  in a permanent  international  court  with adjudicatory  powers  which  are binding  in 
national  law would  quite  obviously  require  a specific  constitutional  amendment.  Per-
haps the real issue  confronting  this Court  on this appeal  is to ascertain  just where  pre-
cisely in the spectrum  between  international  commercial  arbitration  on the one hand  
and a permanent  international  court  with binding  adjudicatory  powers  on the other  the 
investor  tribunals  envisaged  by CETA  actually  lie. It is the characterization  of these  
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investor  tribunals  which  is difficult  and ascertaining  just where  they lie on this spectrum  
is a question  which  remains  problematic  and elusive.    
9. The issues  which  arise  on this appeal  accordingly  to go to the very heart  of our consti-
tutional  architecture.  All of this means  that the present  appeal  may yet be regarded  as 
among  the most  important  which  this Court  has been  required  to hear and determine  in 
its almost  100-year history.   
10. Before  proceeding  further,  a few words  about  the structure  of this judgment  might be 
of assistance.  Part II of the judgment  describes  the scope  of the appeal  and the applica-
ble standard  of review.  Part III describes  in outline  the CETA  investment  tribunals  (in-
cluding  their composition  and jurisdiction).  Part IV addresses  the questi on of whether  
the ratification  of CETA  is “necessitated”  by the obligations  of membership  of the Eu-
ropean  Union  for the purposes  of Article  29.4.6.  (In passing  I might  here observe  that 
if I were  to have  concluded  that ratification  was so necessitated,  then this would  have  
been  the end of the appeal.  Since,  however,  I am of the view  that it is not so necessitated,  
I then proceed  to examine  the merits  of the constitutional  argument).  
11. Part V then considers  in more  detail  the jurisdiction  of the CETA  Tribunals , including  
the extent  to which  any award  made  by a CETA  tribunal  can be reviewed  by a national  
court  (including  an Irish court)  when  it is sought  to enforce  that award.  Part VI discusses  
the question  of whether  ratification  of CETA  would  imperil  the sover eignty  of the State,  
contrary  to Article  5 of the Constitution.  Part VII considers  the question  of legislative  
sovereignty.  Part VIII addresses  the issue  of judicial  sovereignty.  Part IX deals  with the 
issues  of our accession  to the jurisdiction  of the European  Court  of Human  Rights.  Part 
X examines  specific  constitutional  provisions  giving  authority  to the State  to participate  
in international  agreements  providing  for the resolution  of disputes  other  than by Arti-
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cle 34 courts.  Part XI deals  with issues  of democratic  legitimacy  arising  from  the deci-
sions  of the CETA  Joint  Committee.  Part XII contains  the overall  conclusions.   Finally,  
Part XIII deals  with the issue  of curing  the unconstitutionality  identified  by the majority  
of the Court.  
12. Given  that the Cour t is divided  and in view  of the fact that there  are multiplicity  of 
issues  arising  in the present  case,  it might  also be convenient  at the outset  if I were  to 
indicate  my general  agreement  with the lead judgment  of Dunne  J. for the majorit y so 
far as the Article  34.1 issue  is concerned . Specifically,  I consider  that the six principal  
issues  identified  by all members  of the Court  should  be answered  as follows:  
13. Issue  1: Is the ratification  of CETA  “necessitated”  by Ireland’s  obligations  of Union  
law for the purposes  of Article  29.4.6  of the Constitution?  Answer : No, it is not so 
necessitated.  
14. Issue  2: Would  the ratification  of CETA  compromise  the legislative  autonomy  of the 
Oireachtas,  contrary  to Article  15 of the Constitution?  Answer : Yes, insofar  as CETA  
provides  for a form  of strict  liability  on the part of the State  in respect  of legislation  
which  is found  to be contrary  to CETA  and insofar  as it does not contain  a good  faith 
defence  in respect  of any damages  claim  which  might  be brought  against the State.  
15. Issue  3:  Would  the ratification  of CETA  subtract  from  the jurisdiction  of the Irish 
courts,  contrary  to Article  34.1 of the Constitution?  Answer : Yes, but the constitutional  
objection  chiefly  rests in the fact that a judgment  of the CETA  Tribunal  is made  virtu-
ally automatically  enforceable  in the High  Court.  
16. Issue  4:  Would  the ratification  of CETA  be contrary  to Article  34.1 insofar  as enforce-
ment  of such judgments  of a CETA  Tribunal  would  be almost  automatic?  Answer : Yes, 
because  as matters  stand  the High Court  would  have  no power  to refuse  enforcement  
8 
even  where  the award  compromised  Irish constitutional  identity  or constitutional  values  
in a fundamental  way or where  it was inconsistent  with the requirements  of EU law. 
17. Issue  5: Would  the ratification  of CETA  be unconstitutional  inasmuch  as Article  25 
CETA  allows  for the Joint  Committee  to give interpretative  decisions  which  bind the 
CETA  Tribunals,  thus compromising  the democracy  guarantee  in Article  5 of the Con-
stitution?  Answer : Yes. An interpretative  ruling  of this kind is really  a form  of quasi -
legislation  which  in practice  amount s to a de facto  amendment  of CETA.  Even  though  
such an interpretative  decision  might  well – and probably  would  - involve  a (potential)  
charge  on public  funds  in the course  of what  might  well amount  to the de facto  amend-
ment  of an international  agreement,  there  would  be no procedure  whereby  the prior  
consent  of Dáil Éireann  could  be obtained  in the manner  required  by Article  29.5.2.  
18. Issue   6: Would  it be open  in principle  to the Government  to ratify  CETA  if the Oi-
reachtas  were  to amend  the Arbitration  Acts?  Answer : While  this would  be a matter  
for Government  and Oireachtas  to consider,  it would  in principle  be open  to Oireachtas  
to cure the unconstitutionality  identified  in this judgment.  It could  do this by amending  
the Arbitration  Act 2010  in order  to vest the High  Court  with an express  jurisdiction  to 
refuse  to give effect  to a decision  of a CETA  Tribunal  if: 
(a) such an award  materially  compromised  the constitutional  identity  of the State  or 
fundamental  principles  of our constitutional  order,  or 
(b) the award  materially  compromised  our obligation  (reflected  in Article  29.4.4  of the 
Constitution)  to give effect  to EU law (including  the Charter  of Fundamental  Rights  
and Freedoms)  and to preserve  its coherence  and integrity.  
19. Since  Article  5 of the Constitution  assumes  very considerable  importance  regarding  the 
resolution  of this appeal,  it is as well to set out its provisions  at this stage:   
“Ireland  is a sovereign,  indepe ndent,  democratic  state.”   
9 
20. Article  34.1 of the Constitution  further  provides:   
“Justice  shall  be administered  in courts  established  by law by judges  appointed  
in the manner  provided  by this Constitution  and, save in such special  and limited  
cases  as may be prescribed  by law, shall  be administered  in public.”  
21. At the heart  of this appeal  is whether  these  particular  constitutional  guarantees  would  
be compromised  by the ratification  of CETA.  I now propose  to consider  these  issues,  
starting  with a consideration  of the scope  of the appeal  
Part  II: Scope  of the appeal  
Scope  of the appeal  and the constitutional  review  by this Court  
22. The present  proceedings  have  been  brought  by the appellant,  Patrick  Costello,  who is a 
member  of the Green  Party.  He is currently  a Dáil Deputy  for the constituency  of Dublin  
South  Central  and in these  proceedings  he seeks  an order  restraining  the Government  
from  ratifying  CETA  on the ground  that its provisions  in respect  of investor  tribunals  
are unconstitutional.  This claim  was ultimatel y rejected  in the High  Court  in a compre-
hensive  judgment  delivered  on September  2021  by Butler  J.: see Costello  v. Ireland  
[2021]  IEHC  600, [2021]  2 ILRM  145.  It is only proper  to state that this is a judgment  
of remarkable  quality  from  which  I have  deriv ed the greatest  assistance  in this most  
difficult  of cases,  even  if I find myself  compelled  to arrive  at a different  result  from  that 
of the trial judge.   
23. This Court  granted  the appellant  leave  to appeal  directly  to this Court  pursuant  to Arti-
cle 35.5.4  of the Constitution:  see [2022]  IESCDET  1. 
24. The nature  of the proceedings  necessarily  requires  this Court  to assess  as best it can the 
likely  impact  and possible  consequences  of CETA  (or, perhaps,  in strictness,  Chapter  
8 of CETA)  were  it to be ratified  by this State.  In this regard  it has to be said that any 
assessment  made  by this Court  is accordingly  to some  degree  contingent  and uncertain,  
10 
precisely  because  by definition  it is almost  impossible  at this juncture  to predict  pre-
cisely  how the CETA  Tribunal  will approach  its task in respect  of any given  claim.  I 
share  the concerns  expressed  by many  members  of the Court  regarding  the abstract  
nature  of this claim.  Given,  however,  that CETA  will ultimately  become  an obligation  
necessitated  by membership  of the European  Union  of Article  29.4.6  of the Constitution  
– and thus immune  from  any further  constitutional  scrutiny  - were  it be ratified  by this 
State  and the other  26 Member  States  and CETA  subsequently  entered  into force,  there  
is no alternative  but to consider  the constitutionality  of what  is proposed  on this ab-
stract,  ex ante basis.  All of this makes  our task even  more  difficult  because  it would,  
for example,  have  been  far easier  to consider  many  of the difficult  problems  arising  in 
this appeal  if this Court  had been  confronted  with a real life CETA  Tribunal  award  
based  on the facts  of a specific,  real-life case.  
25. In this judgment  I endeavour,  therefore,  to sketch  out what  the possible  implications  of 
such accession  might  be, conscious,  as I am, that any such assessment  could  not possi-
bly bind or otherwise  constrain  the CETA  Tribunal  were  it seized  of some  future  case 
involving  this State.  In performing  this exercise,  I propose,  therefore,  to adhere  as 
closely  as possible  to the text of CETA  itself  and in the process  to reject  any interpre-
tations  or consequences  of CETA  which  appear  to be unlikely  or implausible.   
26. A further  difficulty  is that it is not clear  that there  will be many  – or even  any – cases  
brought  against  the State  under  CETA.  Yet it would  be unrealistic  not to suppose  that 
this could  happen:  it is entirely  possible  that an award  might  be made  by a CETA  in-
vestor  tribunal  against  the State  which  award  could  then be enforced  by the High  Court  
under the provisions  of ss. 24 and 25 of the Arbitration  Act 2010  (“the  2010  Act”)  in 
circumstances  which  I propose  to outline  at a later stage  in this judgment.  
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27. This immediately  raises  the issue  of principle  of whether  accession  to such an interna-
tional  agreement  would  be at variance  with either  Article  5 and Article  34.1 (legislative  
and juridical  sovereignty)  or Article  34.5.6  (the finality  of decisions  of this Court)  of 
the Constitution.  This presents  an issue  of principle  which  raises  a clear -cut questi on 
that essentially  admits  only of a binary  response.  
The standard  of review,  Article  29 and international  relations  
28. It is true, of course,  that the conduct  of international  relations  is committed  generally  
by Article  29 of the Constitution  to the executiv e branch  of government.  The power  to 
make  treaties  is a matter  in the first instance  for the executive  as Article  29.5.1  itself  
makes  clear.  Diplomacy  is generally  conducted  by and with the governments  of other  
nation  states.  The conduct  of foreign  affairs  more  often  yields  to the necessities  of prag-
matism  and Realpolitik  than the dispassionate,  principles -based  approach  which  is the 
lodestar  of judging.  Matters  such as treaty -making,  State  recognition,  diplomacy  and 
the practical  realities  of policy  making  and the day-to-day relations  with other  States  
are quite  obviously  committed  to the Government  to determine.  The precepts  of inter-
national  law – to which  Article  29 itself  makes  several  references  – are, of course,  tra-
ditionally  the concern  of nation  states rather  than individuals.  
29. In Boland  v. An Taoiseach  [1974]  IR 338 the plaintiff  had challenged  the constitution-
ality of the Sunningdale  Agreement  of 1973  on the ground  that the Government  had 
acknowledged  the status  de jure of Northern  Ireland  as part of the United  Kingdom,  
contrary  – or so the argument  ran – to the provisions  of the (original  versions,  now 
replaced)  of Article  2 and Article  3 of the Constitution.  In his judgment  dismissing  the 
claim,  FitzGerald  C.J. stated  ([1974]  IR 338 at 362) that the courts  had no power  to 
“supervise  or interfere”  with the exercise  by the Government  of its executive  functions  
12 
“unless  the circumstances  are such as to amount  to a clear  disregard  by the Government  
of the powers  and duties  conferred  upon  it by the Constitution.”  
30. In his masterly  judgment  in Burke  v. Minister  for Education  and Skills  [2022]  IESC  1, 
[2022]  1 ILRM  73 O’Donnell  C.J. has explained  how the “clear  disregard”  test had 
evolved  in the intervening  years.  I could  not hope  to improve  upon  this historica l anal-
ysis and his close  and compelling  reading  of the constitutional  text with which  I re-
spectfully  agree.  As the Chief  Justice  stated  (at paragraph  60): 
“It is also arguably  consistent  with this approach,  that where  the Constitution  
calls for a broad -based judgment  [by the Government],  and does not constrain  
it by any specific  restrictions  or standards,  that the primary  accountability  for 
such action  lies under  Article  28 with the Dáil,  and that this reinforces  the anal-
ysis of the judicial  role as arising  only in the cases  of clear  disregard.  These  
cases  illustrate  circumstances  where  the courts  have  been  called  on to review  
the actions  of the Government  in different  spheres,  where  it is contended  the 
Government  has failed  to act in accordance  with the express or implied  man-
dates  of the Constitution,  and have  held that the court  may only interfere  in an 
exercise  of power  consigned  by the Constitution  to the Government  where  there  
has been  clear  disregard  of such express  or implied  mandate.”  
31. Unlike  the situa tion in Burke , however,  the present  appeal  does not concern  a challenge  
which  directly  affects  the constitutional  rights  of individuals  as such.  It rather  concerns  
the contention  that the Government  is about  to ratify  – with the approval  of the Dáil – 
a treaty which  abrogates  features  of our legislative  and juridical  sovereignty,  contrary  
to Article  5, Article  34.1 and Article  34.5.6  by reason  (it is said)  of the State’s  submis-
sion to the jurisdiction  of the CETA  Tribunals.   
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32. For my part I do not consider  it necessary  to determine  whether  this is a case governed  
by the “clear  disregard”  test or some  other,  less demanding  test for review.  It is suffi-
cient  to say that for reasons  which  I propose  now to explain  I am of the view  that the 
ratification  of CETA  woul d clearly  breach  specific  constitutional  boundaries,  express  
or implied,  as objectively  interpreted  and construed  by this Court.  In other  words,  even  
assuming  that the “clear  disregard”  test is the applicable  test, I consider  that that test is 
clearly  met in the present  case.  
The appellant’s  standing  
33. There  is no issue,  of course,  regarding  the appellant’s  standing  to make  this case.   Like 
any other  citizen  acting  bona  fide he is entitled  to come  to court  to say that the adoption  
of an international  agreement  is unconstitutional  even  if he cannot  demons trate the type 
of actual  or apprehended  injury  to himself  generally  envisaged  by Henchy  J. in Cahill  
v. Sutton  [1980]  IR 269. This principle  was established  by this Court  in its judgments  
in Crotty  and, indeed,  McGimpsey  v. Ireland  [1990]  1 IR 110 and such must,  if neces-
sary,  be regarded  as one of the exceptions  to the general  standing  rules  envisaged  by 
Henchy  J in Cahill  v. Sutton . 
34. In this respect  the fact that the appellant  is a member  of Dáil Eireann  is really  immaterial  
to the issue  of standing  in a case of this kind,  any more  than it was, for example,  for a 
member  of the Seanad  in a case concerning  Dáil constituencies  in O’Donovan  v. Attor-
ney General  [1961]  IR 114 or for the plaintiff  – who was (and is) a Dáil Deputy  - 
challenging  the ESM  Treaty  in Pringle v. Government  of Ireland  [2012]  IESC  47, 
[2013]  3 IR 1. In all of these  cases,  membership  of the Oireachtas  simply  served  to 
underscore  the bona  fides  of the respective  plaintiffs.  The same  can equally  be said of 
the present  appellant.  
14 
35. I mention  all of this because  at the conclusion  of his judgment  the Chief  Justice  notes  
– perfectly  correctly  – that the requirement  contained  in Article  29.5.2  that Dáil Eireann  
gives  its approval  prior  to the ratification  of CETA  is itself  an important  constraint  in 
terms of the conclusion  of international  agreements  by the State.  It is also true that the 
appellant  in his capacity  as a member  of the Dáil would  be well placed  to contribute  to 
the merits  of this debate.  As this Court  noted  in The State  (Gilliland)  v. Gove rnor of 
Mountjoy  Prison   [1987]  IR 201, Article  29.5.2  is an important  democratic  safeguard  
inasmuch  as international  agreements  which  involve  a charge  on public  funds  (save  
those  of a technical  or administrative  character)  must  secure  the prior  approval  of the 
Dáil before  the State  can be bound  by any such agreements.  
36. None  of this is, however,  strictly  germane  to this appeal.  We are not concerned  with 
the merits  of CETA  – since  this is a matter  for the Government  and Dáil (and,  indeed,  
as I shall  later explain,  the wider  Oireachtas)  to assess  and consider  – but rather  with 
the constitutionality  of the proposed  method  of its ratification . Despite  the fact that he 
can participate  in any debate  qua Dáil Deputy  in any Dáil debate  in respect  of the merits  
of that Agreement  he, like any other  citizen,  also remains  free to come  to this Court  to 
contend  that the ratification  of CETA  in the manner  proposed  is unconstitutional.  Hav-
ing been  thus seized  with this matter  our sole task is instead  to adjudicate  on its legal  
merits  and to address  the constitutional  issues  presented  by this appeal.  
Part  III: The CETA  investment  tribunals  
The composition  and jurisdiction  of the CETA  Tribunal  
37. It is next necessary  to describe  the composition  and jurisdiction  of the CETA  Tribunal.  
The composition  of the CETA  Tribunal  is provided  for in Article  8.27 CETA.  Article  
8.27(2)  CETA  envisages  that the Tribunal  will be a fifteen -member  Panel  consisting  of 
five members  who shall  be EU nationals,  five Canadians  and five shall  be nationals  of 
15 
third  countries.  Article  27.4 CETA  requires  that the members  be eligible  for judicial  
office  or be “jurists  of recognised  competence.”  Expertise  in public  international  law is 
essential  and it is desirable  that they should  have  expertise  in international  trade  law 
and international  investment  law and the resolution  of such disputes.  
38. Members  are to be appointed  for a five-year term,  with certain  transitional  arrange-
ments  (Article  8.27(5)  CETA).  The Tribunal  is to sit in divisions,  with the three  mem-
bers drawn  from  the EU, Canada  and the third  country  nationals  (Article  8.27(6)  
CETA).  The members  are to sit in rotation,  with the President  of the Tribunal  taking  
steps  to ensure that the “composition  of the divisions  is random  and unpredictable”  
(Article  8.27(7)  CETA).  The members  of the Tribunal  are to be paid a monthly  retainer  
fee which  is to be determined  by the CETA  Joint  Committee  (Article  8.27(12)  CETA).  
They  are also to be paid a daily  fee corresponding  to that payable  to members  of arbitral  
panels  sitting  under  the International  Centre  for Settlements  of Investment  Disputes  
Convention  (“ICSID”)  (Article  8.27(14)  CETA).   
39. Article  8.30(1)  CETA  further  provides  that member s of the Tribunal  shall  be independ-
ent and may not be affiliated  with any government,  although  the fact that a person  “re-
ceives  remuneration  from  a government  does not in itself  make  that person  ineligible.”  
Article  8.30 then prescribes  a set of ethical  rules, including  provision  for recusal  and, 
ultimately,  removal  of a Tribunal  member  whose  independence  is in doubt.   
40. In this respect  the rules  regarding  membership  of CETA  Tribunals  addresses  many  of 
the traditional  concerns  voiced  in relation  to the role of arbitrators  in international  ar-
bitration  law, namely,  lack of independence  from  nominating  governments  on the one 
hand  and a certain  eagerness  to please  the international  investment  community  on the 
other.   Indeed,  at the time of the adoption  of CETA,  the European  Union,  its Member  
States  and Canada  established  a Joint  Interpretative  Instrument  (OJ L 11, p.3), Point  
16 
6(f) of which  declares  that CETA  “moves  decisively  away  from  the traditional  approach  
of investment  dispute  resolution  and establishes  indepe ndent,  impartial  and permanent  
investment  Tribunals”  which  were  inspired  “by the principles  of public  judicial  systems  
in the European  Union  and its Member  States  and Canada,  as well as…international  
courts  such as the International  Court  of Justice  and the European  Court  of Human  
Rights.”  
41. While  CETA  goes a long distance  towards  addressing  these  concerns,  the fact remains  
that as matters  stand  members  of the arbitral  tribunals  will not be judges  and nor will 
they enjoy  the standard  guarantees  in respect  of fixity  of tenure  and salary  which  are 
generally  deemed  to be essential  prerequisites  to judicial  independence  in the western  
democratic  legal  tradition.   One might  also draw  attention  to the fact that CETA  Tribu-
nals will not sit in public,  something  which  as Article  34.1 of the Constitution  makes  
clear,  is of the essence  of our constitutional  order.  
42. It is next necessary  to address  the actual  jurisdiction  of the CETA  Tribunals.  Article  
8.31 CETA  is a very important  provision  which  sets out the jurisdiction  of the CETA  
Tribunals.  It provides  as follows:  
“1. When  rendering  its decisions,  the Tribunal  established  under  this Section  
shall  apply  the Agreement  as interpreted  under  the Vienna  Convention  on the 
Law of Treaties,  and other  rules  and principles  of international  law applicable  
between  the Parties.  
2. The Tribunal  shall  not have  jurisdiction  to determine  the legality  of a meas-
ure, alleged  to constitute  a breach  of this Agreement,  under  the domestic  law of 
a Party.  For greater  certainty,  in determining  the consistency  of a measure  with 
this Agreement,  the Tribunal  may consider,  as appropriate,  the domestic  law of 
a Party  as a matter  of fact. In doing  so, the Tribunal  shall  follow  the prevailing  
17 
interpretation  given  to the domestic  law by the courts  or author ities of the Party  
and any meaning  given  to domestic  law by the Tribunal  shall  not be binding  
upon  the courts  or the authorities  of that Party.”   
43. To this, Article  8.39 CETA  may be added  which  provides  that the Tribunal  may award  
only either  damages  (plus  interest)  or restitution  of property.  Even  in the case of resti-
tution,  Article  8.39(1)(b)  CETA  provides  that the award  shall  provide  that the respond-
ent state “may  pay monetary  damages  representing  the fair market  value  of the property  
immediately  before  the expropriation.”  Article  30.6(1)  CETA  provides  that CETA  does 
not form  part of the domestic  law of any of the contracting  parties.  
44. Article  8.41 CETA  deals  with the enforcement  of awards.  Article  8.41(1)  CETA  pro-
vides  that an award  “shall  be binding  betwee n the disputing  parties  and in respect  of 
that particular  case.”  Article  8.41(4)  CETA  provides  that execution  of the award  shall  
be governed  “by the laws concerning  the execution  of judgments  or awards  in force  
where  the execution  is sought.”  Article  8.41( 5) CETA  provides  that such an award  is 
an arbitral  award  which  “is deemed  to relate  to claims  arising  out of a commercial  re-
lationship  or transaction  for the purposes  of Article  1 of the New  York  Convention.”  
Article  8.41(6)  CETA  further  provides  that if a claim  has been  submitted  “pursuant  to 
Article  8.23(2)(a),  a final award  issued  pursuant  to this Section  shall  qualify  as an award  
under  Chapter  IV, Section  6 of the ICSID  Convention.”  (Article  8.23(2)(a)  CETA  al-
lows  an investor  to submit  a claim  under  the provisions  of the ICSID  Convention.)   
45. Article  28.5(1)  CETA,  Article  8.28(5)  CETA  and Article  8.28(7)  CETA  all make  pro-
vision  for the establishment  of the CETA  Appellate  Tribunal,  along  with matters  relat-
ing to the composition,  organization  and administrat ion of that body.  Article  8.39(9)(d)  
provides  that a “final  award  by the Appellate  Tribunal  shall  be regarded  as a final award  
for the purposes  of Article  8.41.”  Article  8.41(1)  CETA  provides  that an “award  issued  
18 
pursuant  to this Section  shall  be binding  between  the disputing  parties  and in respect  of 
that particular  case.”  Article  8.41(2)  CETA  states  that a “disputing  party  shall  recognise  
and comply  with an award  without  delay.”  Article  8.41(4)  CETA  further  provides  that 
execution  of the award  “shall  be governed  by the laws concerning  the execution  of 
judgments  or awards  in force  where  the execution  is sought.”  
46. As we shall  later see, provision  is given  for the enforcement  of these  awards  under  our 
domestic  law by reason  of the operation  of ss. 24 and 25 of the 2010  Act. Of course,  it 
is clear  from  Article  8.41(4)  CETA  that any CETA  Tribunal  award  against  the State  
would  not necessarily  have  to be enforced  here.  The application  for enforcement  could  
be in any country  which  is a party  to ICSID.  
47. Since,  in my view,  this is a case which  is essentially  about  sovereignty  rather  than the 
separation  of powers  as such or a possible  encroachment  into the judicial  function  as 
such, it is unnecessary  for present  purposes  to revisit  any of the Article  34/Article  37 
issue s which  have  recently  been  so comprehensively  examined  in the various  judg-
ments  of this Court  in Zalewski  v. Workplace  Relations  Commission  [2021]  IESC  24. 
It is, I think,  sufficient  to say that, on any view,  a CETA  Tribunal  would  be exercising  
powers  corresponding  to the judicial  powers  of the State.  As the CJEU  observed  in the 
CETA  Opinion  1/17 (Opinion  1/17, EU: C:2019:  341) (at paragraph  197),  these  tribu-
nals “will,  in essence,  exercise  judicial  functions”,  adding  that: 
“They  will be permanent  and they will be established  by law in the form  of the 
acts approving  the CETA  adopted  by the Parties.  They  will apply,  following  an 
adversarial  procedure,  rule of law, will be required  to exercise  their functions  
wholly  autonomously  and will issue  decisions  that are final and binding.”  
19 
The duration  of CETA  
48. It is next necessary  to say something  about  the duration  of CETA.  Article  30.9(1)  CETA  
permits  any party  to denounce  CETA  upon  giving  180 days’  notice.  Article  30.9(2)  
CETA  further  provides,  however,  that, even  in that event,  the provisions  of Chapter  8 
dealing  with investor  tribunals  will continue  in operation  for a further  20 years  in re-
spect  of investments  made  prior  to that point.  
49. The issue  of termination  is, however,  complicated  by membership  of the European  Un-
ion. It is clear  – and, in any event,  the parties  to the appeal  agree  – that post-ratification  
the obligation  to adhere  to CETA  will be one which  is “necessitated”  by the obligations  
of membership  of the Union  for the purposes  of Article  29.4.6  of the Constitution.  It is, 
moreover,  not entirely  clear  whether  the State  could  unilaterally  withdraw  from  CETA  
in those  circumstances,  not least having  regard  to our duty of sincere  co-operation  in 
Article  4(3) TEU.   
50. It is true that in Wightman  (C 621/18,  EU: C: 2018:  999) the CJEU  acknowledged  not 
only that the United  Kingdom  could  withdraw  from  the Union,  but also that during  the 
currency  of the two year notice  period  of withdrawal  specified  in Article  50 TEU  it was 
open  to the United  Kingdom  to revoke  that notice of withdrawal  by virtue  of a further  
decision  to that effect  taken  in accordance  with its own constitutional  requirements.  
That decision  turns,  however,  on the very specific  provisions  of Article  50 TEU  dealing  
with withdrawal  from  the European  Union.  The situation  with regard  to CETA  will be 
quite  different,  since  the issue  then would  be whether  the State  could  unilaterally  exer-
cise a right  of withdrawal  under  CETA  in circumstances  where,  post-ratification  and 
the entry  into force  of that agreement,  adherence  to its terms  would  nonetheless  be an 
obligation  of Union  membership.  
20 
51. While  it is not necessary  to determine  this issue,  it is clear  that, one way or the other,  it 
would  seem  that, once  ratified,  the State  will be bound  by the provisions  of the Treat y 
for a long time so far as the investor  tribunals  are concerned.  
Part  IV: Whether  ratification  of CETA  is “necessitated  by the obligations  of member-
ship of the European  Union”  for the purposes  of Article  29.4.6  
52. Perhaps  the first argument  which  the Court  is called  upon  to address  is whether  the 
ratification  by the Government  of CETA  in the exercise  of its executive  powers  under  
Article  28.2 would  itself  be immune  from  constitutional  scrutiny  by reason  of Article  
29.4.6.  While  accepting  that the State  was under  no legal  obligation  arising  from  Euro-
pean  Union  law to ratify  CETA,  counsel  for the State,  Ms. Donnelly  SC, contended  
nonetheless  that the act of ratification  was necessitated  by reason  of the fact that, once  
ratified  by the Member  States  and the European  Union,  there  would  then be a binding  
obligation  on the State  to comply  with the requirements  of CETA.  This is undoubtedly  
true, but it does not mean  that ratification  of CETA  is nonetheless  “necessitated  by the 
obligations  of membership  of the European  Union”  within  the meaning  of Article  
29.4.6.  
53. I propose  later in this judgment  to explore  in detail  the two Opinions  of the Court  of 
Justice  in Opinion  2/15 (“Singapore”) (Opinion  2/15,   EU:C:  2017:  376) and CETA  
Opinion  1/17 (Opinion  1/17,  EU: C:2019:  341) (“the  CETA  Opinion”).  It is sufficient  
for present  purposes  simply  to record  that in both Singapore  and the CETA  Opinion  the 
Court  of Justice  unambiguously  held that in the case of “mixed”  agreements  – such as 
trade  agreements  of this nature  negotiated  by the European  Union  on behalf  of its mem-
bers – the consent  of the individual  Member  States  was required  by reason  of the fact 
that “such  a regime…removes  disputes  from  the jurisdiction  of the courts  of the Mem-
ber States”.  As it cannot,  therefore,  be of a “purely  ancillary  nature”,  the  CJEU  held 
21 
that the consent  of the individual  Member  States  to such a mixed  agreement  is therefore  
required:  see Singapore  at paragraph  292. 
54. In these  circumstances,  one can only agree  with the conclusions  of Butler  J. (at para-
graph  178 of her judgment,  [2021]  2 ILRM  145 at 223) in the High  Court  that, even  on 
the most  generous  interpretation  of the term “necessitated  by the obligations  of mem-
bership  of the European  Union”,  it is difficult  to see “how  something  which,  as a matter  
of EU law, cannot  be characterised  as ancillary  to the competence  of the EU to enter  
into an international  agreement  can, at the same  time,  be something  which  is [also],  as 
a matter  of Irish constitutional  law”  necessitated  for this purpose.  
55. In these  circumstances  it is unnecessary  to review  any of the judicial  and other  debates  
which  have  taken  place  in the course  of the highly  complex  case-law which  has attended  
the meaning  of this phrase.  It is, perhaps,  sufficient  to say that, save for the important  
decisions  of this Court  in Crotty  and Pringle , all of these  cases  from  Lawlor  v. Minister  
for Agriculture  [1990]  1 IR 356 onwards  have  concerned  some  feature  of EU law which  
did, at some  level,  impose  an obligation  on the State.  This is illustrated  by Lawlor  itself  
where  Community  law (as it then was)  required  the State  to choose  as between  one of 
two options  regarding  the operation  of the milk quota  regime.  The debate  in that case 
was, essentially,  whether  the election  for one or other  choice  was itself  a necessitated  
obligation.  
56. The situation  in Crotty  was different  since  it concerned  the decision  by this State  to 
ratify  the Single  European  Act (“SEA”).  It is clear  from  the judgment  of Finlay  C.J. (at 
767) that the Court  considered  that this decision  was not “necessitated  by the obliga-
tions  of membership”,  although,  of course,  the situation  became  entirely  different  once  
we had ratified  and the SEA  had subsequently  entered  into force.  At that point,  post-
ratification,  the State  was, of course,  obliged  to comply  with the requirements  of the 
22 
SEA  precisely  because  that series  of treaty  amendments  which  were  contained  in the 
SEA  had then entered  into force  following  its ratification  by all of the members  of the 
(then)  European  Economic  Community.   
57. In this respect  I am not unmindful  of the fact that Ms. Donnelly  SC contended  that in 
Crotty  this issue  does not appear  to have  been  argued or, at least,  argued  at any length.  
In his judgment  for the Court  Finlay  C.J. said (at 767) that it was “clear  and was not 
otherwise  contended  by the [State]  defendants  that ratification  of the SEA  (which  has 
not yet taken  place)  would  not constitute  an act ‘necessitated  by the obligations  of mem-
bership  of the Communities.’”  
58. While  all of this may be so, I think  it is plain  that, one way or another,  on this point  the 
reasoning  of Finlay  C.J. in Crotty  is quite  obviously  correct.  If it were  otherwise,  it 
would mean  that the act of ratification  of a variety  of European  Union  treaties  – each 
of which  in their own right  might  have  considerable  implications  for the sovereignty  of 
the State  – would  have  been  “necessitated”  in this sense  without  the possibility  of prior  
judicial  scrutiny  or, for that matter,  the necessity  for a referendum.  
59. It is, perhaps,  at times  difficult  to avoid  the impression  from  various  judicial  dicta  and 
the vast literature  which  attends  this debate  that, at least in the eyes of some,  the issue  
of necessitated  obligations  is simply  a highly  technical  and obtuse  debate  with no real 
wider  significance  beyond  its resolution  in any given  case.  Yet the issue  of the inter-
pretation  of Article  29.4.6  is of fundamental  importance.  
60. So far as Irish law is concerned,  the Constitution  represents  the most  fundamental  
Grundnorm  (“Bunreacht”)  of all. It is, after all, the ultimate  repository  of our sover-
eignty  and democracy.  It expresses  in a profound  way key aspects  of our national  iden-
tity in legal  form.  Since  our accession  to the European  Economic  Community  (as it then 
was)  in 1973  and throughout  the evolution  of that Community  into the European  Union  
23 
from  1973  onwards,  Ireland  has shared  and pooled  its sovereignty  with other  European  
states  for the great er benefit  of all in the manner  so memorably  described  by the Court  
of Justice  in Van Gend  en Loos  (Case  26/62,  EU:C:  1963:  1). Critically,  however,  at all 
relevant  stages  the Irish People  have  assented  to that sharing  and pooling  of sovereignty  
in a serie s of constitutional  amendments  from  1972  onwards.  If, however,  there  is to be 
any further  material  transfer  of that sovereignty,  it is essential  to our system  of consti-
tutional  democracy  that the further  consent  of the Irish People  is obtained.  
61. As Article  5, Article  6 and Article  47 all in their own way demonstrate,  this, at any rate, 
is the theory  upon  which  the Constitution  is founded.  And herein  lies the importance  of 
Article  29.4.6.  While  it acknowledges  the transfer  of sovereignty  which,  for example,  
was entailed  by the ratification  of the Treaty  of Lisbon  (and,  for that matter,  the other  
relevant  European  treaties)  and the assumption  of the obligations  thereby  imposed  by 
Union  law, it also acts as a check  on the further  pooling  of such sovereignty  in a material  
fashion  without  the democratic  assent  of the People.   
62. If, as the appellant  contends,  the ratification  by the State  of CETA  amounts  to a fresh  
transfer  of sovereignty  of a kind not heretofore  provided  for by a specific  constitutional  
amendment  or amendments,  then Article  29.4.6  cannot  avail  the State  in this appeal.  
All of this is yet another  way of saying  that if there  is no existing  legal  obligation  on 
the part of the State  to ratify  CETA  arising  from  our membership  of the Union  – and it 
is conce ded that there  is not – then the ratification  of CETA  falls to be judged  by refer-
ence to ordinary  constitutional  criteria.  The fact that CETA  would  enjoy  immunity  from  
constitutional  scrutiny  for the purposes  of Article  29.4.6  if ratified  by the Union  and all 
the Member  States  is really  quite  beside  the point,  because  prior  to such ratification  – 
which,  of course,  is the position  at the moment  - there  is no such obligation.  
24 
63. As it is accepted  that there  is currently  no obligation  imposed  on the State  to ratify 
CETA  arising  from  our membership  of the European  Union,  I consider  that for all of 
these  reasons  the act of ratification  itself  cannot  enjoy  the constitutional  immunity  pro-
vided  for by Article  29.4.6.  
64. It is next necessary  to examine  the jurisdiction  of the CETA  Tribunals,  as it is this issue  
which  is at the heart  of the present  appeal.   
Part  V: The jurisdiction  of the CETA  Tribunals  
The jurisdiction  of the CETA  Tribunals  
65. The jurisdiction  of the CETA  Tribunals  is set out in Chapter  8 of CETA.  In essence,  
that jurisdiction  enables  the Tribunals  to review  a variety  of executive,  legislative  and 
judicial  measures  taken  by this State  (along,  of course,  with those  of the other  26 Mem-
ber States,  the European  Union  and Canada  itself)  by reference  to a variety  of metrics  
and indicators,  including  market  access  and performance  indicators  set out in almost  
2,000  pages  of CETA  text. Sections  C and D are very important  provisions,  preventing  
as they do discriminatory  treatment  and dealing  with the rights  of investors  and of cov-
ered investments.  
66. It is, however,  the provisions  of Article  8.25,  Article  8.31,  Article  8.39 and Article  8.41 
which  take centre  stage  in any assessment  of the jurisdiction  of the CETA  Tribunal.  It 
may be convenient  at this point  to set out in full the relevant  portions  of these  provi-
sions.  They  provide  as follows:  
“8.25.1.  The respondent  consents  to the settlement  of the dispute  by the Tribunal  
in accordance  with the procedures  set out in this section.  
8.25.2.  The consent  under  paragraph  1 and the submission  of a claim  to the 
Tribunal  under  this Section  shall  satisfy  the requirements  of: 
25 
 (a) Article  25 of the ICSID  Convention  and Chapter  II of Schedule  C of 
the ICSID  Additional  Facility  Rules  regarding  written  consent  of the disputing  
parties;  and 
 (b) Article  II of the New  York  Convention  for an agreement  in writing.”  
 
“8.31.1.  When  rendering  its decisions,  the Tribunal  established  under  this Sec-
tion shall  apply  the Agreement  as interpreted  in accordance  with the Vienna  
Convention  on the Law of Treaties,  and other  rules  and principles  of interna-
tional  law applicable  between  the Parties.  
8.31.2.  The Tribunal  shall  not have  jurisdiction  to determine  the legality  of a 
measure,  alleged  to constitute  a breach  of this Agreement,  under  the domestic  
law of a Party.  For greater  certainty,  in determining  the consistency  of a measure  
with this Agreement,  the Tribunal  may consider,  as appropriate,  the domestic  
law of a Party  as a matter  of fact. In doing  so, the Tribunal  shall  follow  the 
prevailing  interpretatio n given  to the domestic  law by the courts  or authorities  
of the Party  and any meaning  given  to domestic  law by the Tribunal  shall  not 
be binding  upon  the courts  or the authorities  of that Party.  
8.31.3.  Where  serious  concerns  arise  as regards  matters  of interpretation  that 
may affect  investment,  the Committee  on Services  and Investment  may,  pursu-
ant to Article  8.44.3(a),  recommend  to the CETA  Joint  Committee  the adoption  
of interpretations  of this Agreement.  An interpretation  adopted  by the CET A 
Joint  Committee  shall  be binding  on the Tribunal  established  under  this Section.  
The CETA  Joint  Committee  may decide  that an interpretation  shall  have  bind-
ing effect  from  a specific  date.”  
 
26 
“8.39.1.  If the Tribunal  makes  a final award  against  the respond ent, the Tribunal  
may only award,  separately  or in combination:  
(a) Monetary  damages  and any applicable  interest;  
(b) Restitution  of property,  in which  case the award  shall  provide  that 
the respondent  may pay monetary  damages  representing  the fair 
market  value  of the property  at the time immediately  before  the ex-
propriation,  or impending  expropriation  became  known,  whichever  
is earlier,  and any applicable  interest  in lieu of restitution,  deter-
mined  a manner  consisted  with Article  8.12.  
8.39.2.  Subject  to paragraphs  1 and 5, if a claim  is made  under  Article  8.23.1(b):  
(a) An award  of monetary  damages  and any applicable  interest  shall  
provide  that sum be paid to the locally  established  enterprise;  
(b) An award  of restitution  of property  shall  provide  that restitution  
be made  to the locally  established  enterprise;  
(c) An award  of costs  in favour  of the investor  shall  provide  that it 
is to be made  to the investor;  and 
(d) The award  shall  provide  that it is made  without  prejudice  to a 
right  that a person,  other  than a person  which  has provided  a 
waiver  pursuant  to Article  8.22,  may have  in monetary  damages  
or property  awarded  under  a Party’s  law.  
8.39.3.  Monetary  damages  shall  not be greater  than the loss suffered  by the in-
vestor  or, as applicable,  the locally  establi shed enterprise,  reduced  by any prior  
damages  or compensation  already  provided.  For the calculation  of monetary  
damages,  the Tribunal  shall  also reduce  the damages  to take into account  any 
restitution  of property  or repeal  or modification  of the measure.  
27 
8.39.4.  The Tribunal  shall  not award  punitive  damages.  
8.39.5.  The Tribunal  shall  order  that the costs  of the proceedings  be borne  by 
the unsuccessful  disputing  party.  In exceptional  circumstances,  the Tribunal  
may apportion  costs  between  the disputing  parties if it determines  that appor-
tionment  is appropriate  in the circumstances  of the claim.  Other  reasonable  
costs,  including  costs  of legal  representation  and assistance,  shall  be borne  by 
the unsuccessful  disputing  party,  unless  the Tribunal  determines  that such ap-
portionment  is unreasonable  in the circumstances  of the claim.  If only parts  of 
the claims  have  been  successful  the costs  shall  be adjusted,  proportionately,  to 
the number  or extent  of the successful  parts  of the claims.  
8.39.6.  The CETA  Joint  Com mittee  shall  consider  supplemental  rules  aimed  at 
reducing  the financial  burden  on claimants  who are natural  persons  or small  and 
medium  sized  enterprises.  Such  supplemental  rules  may,  in particular,  take into 
account  the financial  resources  of such claima nts and the amount  of compensa-
tion sought.  
8.39.7.  The Tribunal  and the disputing  parties  shall  make  every  effort  to ensure  
the dispute  settlement  process  is carried  out in a timely  manner.  The Tribunal  
shall  issue  its final award  within  24 months  of the date the claim  is submitted  
pursuant  to Article  8.23.  If the Tribunal  requires  additional  time to issue  its final 
award,  it shall  provide  the disputing  parties  the reasons  for the delay…..  
 
8.41.1.  An award  issued  pursuant  to this Section  shall  be binding  between  the 
disputing  parties  and in respect  of that particular  case.  
8.41.2.  Subject  to paragraph  3, a disputing  party  shall  recognize  and comply  
with an award  without  delay.   
28 
8.41.3.  A disputing  party  shall  not seek enforcement  of a final award  until:   
(a) In the case of a final award  issued  under  the ICSID  Convention:  
i. 120 days have  elapsed  from  the date the award  was ren-
dered  and no disputing  party  has requested  revision  or 
annulment  of the award;  or 
ii. Enforcement  of the award  has been  stayed  and revision  
or annulment  proceedings  have  been  completed;  
(b) In the case of a final award  under  the ICSID  Additional  Facility  
Rules,  the UNCITRAL  Arbitration  Rules,  or any others  appli-
cable  pursuant  to Article  8.23.2(d):  
i. 90 days have  elapsed  from  the date the award  was ren-
dered  and no disputing  party  has commenced  a proceed-
ing to revise,  set aside  or annul  the award;  or 
ii. Enforcement  of the award  has been  stayed  and a court  
has dismissed  or allowed  an application  to revise,  set 
aside  or annul  the award  and there  is no further  appeal.  
8.41.4.  Execution  of the award  shall  be governed  by the laws concerning  the 
execution  of judgments  or awards  in force  where  the execution  is sought.  
8.41.5.  A final award  issued  pursuant  to this Section  is an arbitral  award  that is 
deemed  to relate  to claims  arising  out of a commercial  relationship  or transac-
tion for the purposes  of Article  I of the New  York  Convention.  
8.41.6.  For greater  certainty,  if a claim  has been  submitted  pursuant  to Artic le 
8.23.2(a),  a final award  issued  pursuant  to this Section  shall  qualify  as an award  
under  Chapter  IV, Section  6 of the ICSID  Convention.”  
 
29 
66. Provision  is also made  for an appeal  by either  party  to a CETA  Appeal  Tribunal:  see 
Article  8.28 CETA.  
67. While  it is clear  from  the provisions  of Chapter  8 that the CETA  Tribunals  are empow-
ered to review  features  of the general  public  law of the State,  Article  8.31(2)  CETA  
makes  it clear  nevertheless  that the Tribunal  does not have  jurisdiction  “to determine  
the legality  of a measure,  alleged  to constitute  a breach  of the Agreement,  under  the 
domestic  law of a Party.”  Article  30.6(1)  CETA  further  states  that the agreement  itself  
cannot  be “directly  invoked  in the domestic  legal  systems  of the Parties.”  
68. The jurisdiction  of the CETA  Tribunals  is instead  confined  simply  to the award  of dam-
ages (plus  interest)  or (in certain  circumstances)  the restitution  of property:  see Article  
8.39(1)  CETA.  These  awards  are then made  enforceable  as if they were  either  “arbitral  
awards”  for the purposes  of Article  1 of the United  Nations  Convention  on the Recog-
nition  and Enforcement  of Foreign  Arbitral  Awards  1958  (“the  New  York  Conven-
tion”)  or a “final  award”  for the purposes  of Chapter  IV, Section  6 of the ICSID  Con-
vention  1966.  It is worth  noting  that both the New  York  Convention  and the ICSID  
Convention  have  the force  of law in the State:  see generally  2010  Act, s. 24(1)  and s. 
25(3)  respectively.  
69. What,  then,  is the practical  effect  of these  provisions?  It means  that the State  has given  
a unilateral  consent  to the CETA  Tribunal  to hear claims  for damages  (and,  perhaps,  in 
some  limited  instances,  restitution  of property  or its equivalent  in monetary  terms)  
brought  by investors  in respect  of what,  for present  purposes,  amounts  almost  to perpe-
tuity:  see Article  8.25 CETA.  This consent  is, however,  quite  different  from  that which  
is given  in specific  commercial  arbitration  proceedings  where  the consent  is contractual  
in nature.  In that situation  the consent  represents  the free contractual  wishes  of the par-
ties and is one which  (normally,  at least)  is specific  to an identifiable  and identified  
30 
claim  from  an identified  or at least identifiable  party.  Both  parties  are also free to submit  
the claim  to arbitration  and each defendant  (including  State  parties)  may counter -claim.  
Such  claims,  moreover,  relates  essentially  to the private  law of the State  in that they are 
generally  fundamentally  contractual  in nature.   
70. The striking  difference  between  the two forms  of arbitration  was memorably  expressed  
by Paulsson,  “Arbitration  without  Privity”  (1995)  10 ICSID  Rev – Foreign  Investment  
Law Journal  232:  
“It is commonplace  to say of arbitration  that it is consensual.  A claimant  initi-
ates arbitration  because  it has agreed  with the defendant  that any dispute  be-
tween  them  will be thus resolved.  Either  party  can commence  proceedings  as a 
claimant:  once  an arbitration  has started,  the defendant  may raise  a counter-
claim.  This is the arbitration  world  as we know  it today.  Hundreds  of thousands  
of international  contrac ts adhere  to this basic  framework,  more  or less depend-
able in individual  cases.  But explorers  have  set out to discover  a new territory  
for international  arbitration.  They  have  already  landed  on a few islands,  and 
they have  prepared  maps  showing  a vast continent  beyond.  This new world  of 
arbitration  is one where  the claimant  need  not have  a contractual  relationship  
with the defendant  and where  the tables  could  not be turned:  the defendant  could  
not have  initiated  the arbitration,  nor is it certain  of being  able to bring  a coun-
terclaim.”   
71. By contrast,  the consent  here derives  from  a multi -lateral  treaty  provision  in which  the 
state parties  have  agreed  to vest jurisdiction  in the CETA  Tribunals  to make  damages  
awards  in respect  of the general  public  law of each state (and,  as the case may be, the 
European  Union):  see, by analogy,  the comments  of the Court  of Justice  to this effect  
in Achmea  (C-284/16,  EU:C:  2018:  158) at paragraphs  55 and 56 and in European  Food  
31 
SA (Case  C-638/19P,  EU: C: 2022:  50) at paragraph  144. Unlike  the ordinary  arbitration  
case,  this jurisdiction  exists  only for the benefit  of the disappointed  or aggrieved  inves-
tor: this jurisdiction  cannot  be invoked  by the State  itself.  
72. These  awards  are then made  enforceable  in our domestic  law by virtu e of Article  8.41 
CETA  and, by extension,  ss. 24 and 25 of the 2010  Act. Following  a detailed  examina-
tion of these  provisions,  in the High  Court  Butler  J. concluded  (at paragraph  149 of her 
judgment,  [2021]  2 ILRM  145 at 211),  that “enforcement  is almost  automatic  and the 
losing  party  would  know  that if they did not comply  with the award  of their own voli-
tion, they could  be forced  to do so by power  of the State.”  This analysis  was strongly  
disputed  by counsel  for the State  parties  in this appeal.  
73. Given  the central  importance  of this issue,  it is convenient  that we should  turn to it now.  
It is worth  saying,  of course,  that the grounds  of review  of any tribunal  award  under  the 
New  York  Convention  are possibly  wider  than under  the ICSID  Convention  in that, for 
example,  the former  provides  that the enforcing  court  may decline  to do so if it is in-
compatible  with the public  policy  of that State,  whereas  this is not true of ICSID.  The 
fact remains,  of course,  that Article  8.23(2)  CETA  expressly  allows  an investor  claim-
ant the right  to elect  to have  the award  enforced  under  ICSID.  Since  in practice  one 
must  assume  that most  successful  investors  would  follow  this course  of action,  the 
scope  of review  under  ICSID  therefore  assumes  considerable  importance.   
 
Review  by a national  court  under  the ICSID  Convention  
74. The extent  to which  an arbitral  award  made  under  the ICSID  Convention  can be re-
viewed  or examined  by a national  court  has been  the subject  of extensive  analysis  in 
the exceptionally  thorough  joint judgment  of Lord  Lloyd -Jones  and Lord  Sales  for the 
UK Supreme  Court  in Micula  v. Romania  [2020]  UKSC  5, [2020]  1 WLR  1033.  Here  
32 
a claim  was brought  by Swedish  investors  against  Romania  under  a Sweden/Romania  
bi-lateral  investment  treaty  which  provided  for an arbitral  tribunal operating  under  IC-
SID arbitration  rules.  The Swedish  claimants  maintained  that Romania  had wrongfully  
withdrawn  certain  tax advantages  which  they had been  promised  but which  had then 
been  withdrawn  after Romania’s  accession  to the European  Union  in 2007. The arbitral  
tribunal  found  in the claimant’s  favour.  The claimants  then sought  to have the award  
registered  and enforced  in the United  Kingdom,  along  with a variety  of other  jurisdic-
tions  apart  from  Romania.  
75. Parallel  with all of this, the European  Com mission  had conducted  an investigation  into 
the entire  affair.  It concluded  that the tax advantages  in question  had amounted  to an 
unlawful  State  aid for the purposes  of Article  107(1)  TFEU.  It directed  Romania  not to 
pay the award.  Romania  (supported  by the Commission)  then applied  to the English  
High  Court  for an order  staying  both registration  and enforcement  of the award  pending  
a separate  challenge  brought  by the claimants  before  the General  Court  of the European  
Union  seeking  to have  the Commission’s  decision  set aside.  
76. Following  a series  of appeals,  the matter  ultimately  came  before  the UK Supreme  Court  
where  that Court  ultimately  lifted  the stay upon  registration  and enforcement.  For our 
purposes,  what  is significant  is that while  the UK Supreme  Cour t took the view  that 
while  the true scope  and meaning  of Article  54 of ICSID  could  only authoritatively  be 
determined  by the International  Court  of Justice,  at the same  time that Court  considered  
a domestic  court  was nonetheless  entitled  to consider  and rule upon  the effect  of a mul-
tilateral  treaty  such as ICSID  insofar  as it bore on the issues  before  them.  The judgment  
of the UK Supreme  Court  simply  serves  to illustrate  the very narrowness  of the review  
which  is open  to any court  called  upon  to enforce  an arbitral  award  of this nature.  
33 
77. In their joint judgment,  Lord  Lloyd -Jones  and Lord  Sales  took the view  that the scheme  
of ICSID  was such that once  the authenticity  of an award  had been  established,  a do-
mestic  court  could  not re-examine  such an award  on its merits.  They  continued  ([2022]  
1 WLR  1033  at 1055):   
“It is a notable  feature  of the scheme  of the ICSID  Convention  that once  the 
authenticity  of an award  is established,  a domestic  court  before  which  recogni-
tion is sought  may not re-examine  the award  on its merits.  Similarly,  a domestic  
court  may not refuse  to enforce  an authenticated  ICSID  award  on grounds  of 
national  or international  public  policy.  In this respect,  the ICSID  Convention  
differs  significantly  from  the New  York  Convention  on the Recognition  and 
Enforcement  of Foreign  Arbitral  Awards  1958.  The position  is stated  in this 
way by Professor  Schreuer  in his commentary  on Article  54(1):  “The  system  of 
review  under  the Convention  is self-contained  and does not permit  any external  
review.  This principle  also extends  to the stage  of recognition  and enforcement  
of ICSID  awards.  A domestic  court  or authority  before  which  recognition  and 
enforcement  is sought  is restricted  to ascertaining  the award’s  authenticity.  It 
may not re-examine  the ICSID  tribunal’s  jurisdiction.  It may not re-examine  the 
award  on the merits.  Nor may it examine  the fairness  and propriety  of the pro-
ceedings  before  the ICSID  tribunal.  This is in contrast  to non-ICSID  awards,  
including  Additional  Facility  awards,  which  may be reviewed  under  domestic  
law and applicable  treaties.  In partic ular, the New  York  Convention  gives  a de-
tailed  list of grounds  on which  recognition  and enforcement  may be refused  …” 
(Christoph  H Schreuer,  The ICSID  Convention:  A Commentary , 2nd ed (2009),  
p 1139,  para 81). “The  Convention’s  drafting  history  shows  that domestic  au-
thorities  charged  with recognition  and enforcement  have  no discretion  to review  
34 
the award  once  its authenticity  has been  established.  Not even  the ordre  pub-
lic (public  policy)  of the forum  may furnish  a ground  for refusal.  The finality  of 
awards  would  also exclude  any examination  of their compliance  with interna-
tional  public  policy  or international  law in general.  The observance  of interna-
tional  law is the task of the arbitral  tribunal  in application  of article  42 of the 
Convention  subject  to a possible  control  by an ad hoc committee  … Nor would  
there  be any room  for the application  of the Act of State  doctrine  in connection  
with the recognition  and enforcement  of an ICSID  award  …” (Schreuer,  pp 
1140 -1141,  para 85). “ 
78. They  continued  by stating ([2020]  1 WLR  1033  at 1055 -1056):   
“Contracting  States  may not refuse  recognition  or enforcement  of an award  on 
grounds  covered  by the challenge  provisions  in the Convention  itself  (Articles  
50-52). Nor may they do so on grounds  based  on any general  doctrine of ordre  
public , since  in the drafting  process  the decision  was taken  not to follow  the 
model  of the New  York  Convention.  However,  although  it is recognised  that 
this is the general  position  under  the Convention,  it is arguable  that Article  
54(1),  by framing  the relevant  obligation  as to enforcement  as an obligation  to 
treat an award  under  the Convention  as if it were  a final judgment  of a local  
court,  allows  certain  other  defences  to enforcement  which  are available  in local  
law in relation  to such a final judgment  to be raised.”  
79. Lord  Lloyd -Jones  and Lord  Sales  then conducted  a close  and detailed  examination  of 
the drafting  history  of Article  54 ICSID  (and certain  other  articles)  before  concluding  
([2020]  1 WLR  1033  at 1058 -1059):   
35 
“However,  in light of the wording  of Articles  54(1)  and 55 and the travaux  
préparatoires  reviewed  above,  it is arguable  that there  is scope  for some  addi-
tional  defences  against  enforcement,  in certain  exceptional  or extraordinary  cir-
cumstances  which  are not defined,  if nation al law recognises  them  in respect  of 
final judgments  of national  courts  and they do not directly  overlap  with those  
grounds  of challenge  to an award  which  are specifically  allocated  to Convention  
organs  under  Articles  50 to 52 of the Convention.”  
80. In an Irish context,  these  exceptional  defences  would  probably  include  an allegation  
that the judgment  was procured  by fraud  (see, e.g., Waite  v. House  of Spring  Gardens  
Ltd., High  Court,  26 June 1985 ; Desmond  v. Moriarty  [2018]  IESC  34) or where  there  
had been  such a fundamental  understanding  as to key facts  (The People  (Director  of 
Public  Prosecutions)  v. McKevitt  [2009]  IESC  29; Re McInerney  Homes  Ltd. [2011]  
IESC  34) or where  the decision  had been  given  per incuriam  (Abbeydrive  Develop-
ments  Ltd. v. Kildare  Count y Council  (No.2)  [2010]  IESC  8, [2010]  2 IR 397) or a 
fundamental  failure  of due process  (see, e.g., Re Greendale  Properties  Ltd. (No.3)  
[2000]  2 IR 514; LP v. MP [2001]   IESC   76, [2002]  1 IR 219; Desmond  v. Moriarty  
[2018]  IESC  34). As this Court  observe d in Walsh  v. Minister  for Justice  [2019]  IESC  
15, [2020]  1 IR 488, the set aside  jurisdiction  remains  quite  exceptional.  
81. If these  defences  are available  in principle  in order  to impeach  the validity  of a domestic  
judgment  which  is otherwise  final and conc lusive,  then,  in the light of Micula  and the 
language  of Article  54(1)  of ICSID,  the same  is probably  true in respect  of an arbitral  
award  given  under  ICSID.  
82. It is unnecessary  to be definitive  on this question:  it is sufficient  to say that even  if such 
defences  are in theory  currently  available  – or, as Butler  J. put it (at paragraph  149, 
[2021]  2 ILRM  145 at 150),  even  accepting  “the potential  existence  of some  limited  
36 
and undefined  grounds”  of defence  - they would  by definition  be confined  to wholly  
excep tional  and unusual  situations.  Here  the wording  of s. 25(5)  of the 2010  Act is of 
some  relevance:   
“The  pecuniary  obligations  imposed  by an [ICSID]  award  shall,  by leave  of the 
High  Court,  be enforceable  in the same  manner  as a judgment  or order  of the 
High Court  to the same  effect  and, where  leave  is so given,  judgment  may be 
entered  for the amount  due or, as the case may be, the balance  outstanding  on 
the award.”  
83. While  some  emphasis  was placed  by Ms. Donnelly  SC on the leave  requirement  im-
posed  by the section, for my part I think  that as matters  currently  stand  it is really  in the 
nature  of a decorous  formality.  It certainly  does not empower  the High  Court  to review  
the substance  of the award  or anything  of the kind.  The truth  of the matter  is that, as-
sumi ng the procedural  formalities  have  been  complied  with and in the absence  of some  
highly  unusual  defence  such as fraud,  the High  Court  currently  enjoys  no real discretion  
in the matter  and has little option  but to give effect  to the award.  
84. Of course,  as the Chief  Justice  has noted  in his judgment,  no one has previously  sought  
to find fault with the Arbitration  Act 2010  as a thing  in itself,  still less contend  that s. 
25 of the 2010  Act was unconstitutional.  The issue  is rather  that, in the context  of 
CETA,  the 2010  Act has, so to speak,  been  conscripted  into service  as a means  of giving  
effect  to the awards  of CETA  Tribunals:  in this respect  the Act serves  as a sort of make-
shift pontoon  bridge  by which  a CETA  Tribunal  award  is enabled  to cross  that legal  
Rubi con from  the realm   of international  law into an enforceable  judgment  recognised  
as such by our own legal  system  on a more  or less automatic  basis.  
85. This would  appear  to be true even  if the CETA  Tribunal  were  to deliver  a judgment  
which  was inconsistent  with an earlier  judgment  given  by an Irish court.  This is a 
37 
ground  upon  which  to refuse  recognition  and enforcement  of a foreign  judgment  under  
our own rules  of private  international  law: see generally,  Binchy,  The Irish  Conflicts  of 
Law (Dublin,  1987)  at Chapter 33. It is also a ground  for refusal  of recognition  under  
the Brussels  system:  see, e.g., Article  45(1)(c)  of the Brussels  Regulation  No. 
1215/2012  (recast).  Yet even  such a fundamental  rule of non-recognition  would  not 
seem  to be available  to resist  the enforcement  of a CETA  award  under  the ICSID  Con-
vention.  
86. A further  complication  might  also arise  were  an Irish court  to contemplate  a refusal  to 
recognise  a CETA  award  post-ratification . Under  those  circumstances  compliance  with 
CETA  would  then be a “necessitated  obligation”  of Union  membership  for the purposes  
of Article  29.4.6  of the Constitution.  There  would  be at least a question  mark  as to 
whether  an Irish court  could  properly  refuse  to recognise  a CETA  award  by reference  
to some  domestic  ordre  publi c-style  considerations  having  regard  to the duty of sincere  
co-operation  contained  in Article  4(3) TEU  which  would  then be imposed  on an Irish 
court.  These  agreements  are, after all, an “integral  part of EU law and may therefore  be 
the subject  of reference s for a preliminary  ruling”:  CETA  Opinion  at paragraph  117 and 
see generally  Republic  of Moldova  (C-741/19,  EU: C: 2021:  655) at paragraphs  33 and 
50.  
87. An investor  claimant  has, moreover,  the option  of bringing  enforcement  proceedings  in 
any country  that is a party  to the ICSID  Convention:  see Article  8.23(2)  CETA  and 
Article  8.41 CETA.  It would  not necessarily  follow  that even  these  (limited)  defences  
would  be available  to the State  in those  circumstances.   
88. One way or another,  I consider  that Butler  J. was correct  when  she described  (at para-
graph  149, [2021]  2 ILRM  145 at 211) the enforcement  of a CETA  award  as “almost  
38 
automatic”  and the losing  party  “would  know  that if they did not comply  with the award  
of their own volition,  they could  be forced  to do so by power  of the State.”  
Part  VI: Whether  ratification  of CETA  would  imperil  the sovereignty  of the State,  con-
trary  to Article  5 of the Constitution  
The jurisdiction  of CETA  tribunals  to interpret  the domestic  law of the State  
89. At the heart  of the appellant’ s objections  to the entire  system  of the CETA  Tribunals  is 
that any awards  made  against  the State  are likely  to have  an inhibiting  effect  on the 
Oireachtas  in terms  of the formulation  of legislative  policy.  In the modern  environment  
where  all the Member  States of the Union  (including  the State  itself)  have  committed  
themselves  to the Paris  Agreement  of 2015  and the necessity  to begin  the difficult  pro-
cess of decarbonising  the economy,  it may be supposed  that such claims  – were  they,  
indeed,  ever to arise  – would  in all likelihood  be directed  at legislative  and other  steps  
taken  directly  or indirectly  to end our reliance  on fossil  fuels  or, at least,  broadly  similar  
claims  of that nature.  In essence,  the question  is whether  there  is any real likelihood  
that a CETA  Tribunal  might  award  damages  where  a new regulatory  measure  aimed,  
for example,  at curbing  carbon  emissions,  had the effect  of rendering  an existing  busi-
ness uneconomic  and, if it did, whether  such an award  might  effectively  jeopardise  the 
legislativ e or judicial  sovereignty  of this State,  contrary  to Article  5 of the Constitution.   
90. Before  examining  this question,  a related  and equally  important  issue  to be considered  
in the context  of the jurisdiction  of the CETA  Tribunals  is the question  of whether  a 
CETA  Tribunal  may be required  to interpret  the domestic  law of the State.  Article  
8.31(2)  CETA  provides  that a CETA  Tribunal  “may  consider,  as appropriate,  the do-
mestic  law of a Party  as a matter  of fact.”  It further  provides  that “any  meaning  given  
to domestic  law by the Tribunal  shall  not be binding  upon  the courts  or the authorities  
of that party.”   
39 
91. This is of fundamental  importance  because,  as I propose  to explain,  if a CETA  Tribunal  
does find that the State  has breached  its obligations  under  CETA,  the CETA  Tribunal  
has the power  to make  awards  of monetary  damages  which  have  almost  automatic  ef-
fect in our own domestic  law. As we have  seen,  the power  of the High  Court  to review  
an arbitral  award  is likely  to be limited  to exceptional  and unusual  circums tances  and 
certainly  as things  stand  does not extend  to a review  on the merits.  All of this means  
that if the CETA  Tribunal  could  be said to interpret  the domestic  law of the State  – even  
if only as a matter  of fact and, again,  even  if only in a way which  does not bind the 
national  courts  - and the CETA  Tribunal  does so erroneously,  the State  would  have  no 
recourse.  
92. This question  of whether  arbitral  tribunals  interpret  the law of contracting  parties  has 
been  central  to much  of the CJEU’s  jurisprudence  on international  agreements  which  
establish  tribunals  empowered  to hear disputes  on matters  bearing  upon  EU law. The 
CJEU  has, indeed,  considered  many  of the sovereignty  and judicial  autonomy  argu-
ments  which  attend  the present  case.  I suggest,  therefore,  that it might  be of assistance  
first to examine  the CJEU’s  position  on this matter.  
The jurisprudence  of the Court  of Justice  in respect  of legislative  autonomy  
93. For decades,  the CJEU  has demonstrated  a large  degree  of solicitude  in respect  of its 
own jurisdiction  and it generally  seems  unenamoured  of any proposals  which  involve  
the ceding  to other  bodies  powers  which  may conflict  generally  with those  of the EU 
institutions  and with its own jurisdiction  in particular.   Here  it is perhaps  not necessary  
to look any further  than the Court’s  judgment  in Opinion  2/13 (Opinion  2/13, EU:C:  
2014:  2454)  dealing  with the accession  of the Union  to the European  Court  of Human  
Rights  in which  the Court  found  that such accession  would  be contrary  to the autonomy  
of Union law. In this and in other  similar  cases,  the CJEU’s  principal  concern  has been  
40 
that such bodies  would  undermine  the autonomy  of the EU legal  order  and in turn the 
full effectiveness  of EU law. One way that the CJEU  has considered  arbitral  tribunals  
capable of doing  just that is if those  tribunals  are required  to interpret  or apply  EU law 
in a manner  which  would  undermine  the exclusive  jurisdiction  of the CJEU  to adjudi-
cate finally  on such matters.  
94. This concern  is perhaps  best reflected  in the CJEU  decis ion in Achmea  (C-284/16,  
EU:C:  2018:  158).  Achmea  concerned  a bilateral  investment  treaty  (“BIT”)  which  was 
agreed  between  the Netherlands  and Slovakia  in 1992.  The BIT established  an investor  
state dispute  settlement  procedure  which  granted  exclusive  jurisdiction  to an arbitral  
tribunal  to determine  disputes  arising  in respect  of investors  of one state viz-a-viz the 
actions  of the other  state.  
95. The proceedings  in Achmea  arose  after Slovakia  reversed  its policy  of liberalisation  of 
the medical  insurance  mark et which  had allowed  national  operators  and those  from  
other  Member  States  to offer  private  sickness  insurance  services  in Slovakia.  Achmea,  
an undertaking  belonging  to a Dutch  insurance  group,  had entered  the medical  insur-
ance market  in Slovakia  following  this liberalisation  and stood  to lose millions  of euros  
as a result  of the Slovak  Government’s  policy  reversal.  Achmea  accordingly  brought  
arbitration  proceedings  against  Slovakia  pursuant  to the investor  state dispute  settle-
ment  mechanism  contained  in Article 8 of the BIT. Achmea  chose  Frankfurt  as the 
place  of arbitration  and therefore  German  law applied  to the proceedings.  (There  are 
shades  here of the long-running  litigation  brought  by the British  insurer,  BUPA,  in the 
wake  of its decision  to exit the Irish market  following  the triggering  by the Minister  for 
Health  and Children  of the risk equalization  scheme  in 2005.  I propose  to return  to this 
point  later in this judgment).  
41 
96. During  the arbitration  proceedings  Slovakia  raised  an objection  of lack of jurisdiction  
of the arbitral  tribunal  and contended  that the BIT was incompatible  with EU law. By 
an arbitral  award  dated  7th December  2012,  the arbitral  tribunal  dismissed  this objec-
tion and ordered  Slovakia  to pay Achmea  damages  in the amount  of EUR  22.1 million.  
Slovakia  then appealed  on a point  of law by which  it sought  to have  that award  set aside  
before  the German  courts.  This appeal  ultimately  made  its way before  the Bun-
desger ichtshof  (the German  Federal  Court  of Justice)  and that court  made  a preliminary  
reference  to the CJEU.  
97. In his Opinion  dated  19 September  2017  Advocate  General  Wathelet  considered  the 
investor  state dispute  settlement  mechanism  established  by the BIT to be compatible  
with EU law and with the allocation  of powers  fixed  by the EU and FEU  Treaties  and 
the autonomy  of the EU legal  systems.  In its judgment  dated  6th March  2018  the CJEU,  
however,  disagreed.  
98. One of the reasons  offered  by the CJEU  for its conclusio n turned  on the question  of 
whether  the arbitral  tribunal  established  under  the BIT may be required  to resolve  dis-
putes  which  would  be liable  to relate  to the interpretation  or application  of EU law. In 
answer  to this question  the CJEU  considered  that, even if the arbitral  tribunal  estab-
lished  under  the BIT could  be said to be called  upon  only to rule on possible  infringe-
ments  of the BIT, “the fact remains  that in order  to do so it must,  in accordance  with 
Article  8(6) of the BIT, take account  in particular  of the law in force  of the contracting  
party  concerned  and other  relevant  agreements  between  the contracting  parties”:  see 
paragraph  40 of Achmea . It followed  from  this that the arbitral  tribunal  would  neces-
sarily  be called  upon  to interpret  and apply  EU law because  EU law – by reason  of the 
doctrines  of primacy  and direct  effect  – forms  part of the law in force  in every  Member  
State.  In other  words,  the arbitral  tribunal  established  by the BIT would  be required  to 
42 
interpret  and apply  EU law given  EU law forms  part of the corpus  juris in force  in both 
the Netherlands  and in Slovakia.  The CJEU  concluded  that the arbitral  tribunal  was 
therefore  liable  to negate  the powers  of the CJEU  and the effectiveness  of EU law. 
CETA  Opinion  1/17 
99. The CJEU  seems,  however,  to have  taken  a somewhat  different  approach  to its reason-
ing in CETA  Opinion  1/17 in respect  of accession  by the Union  to CETA  itself.  In CETA  
Opinion  1/17 the Belgian  State  – as part of an agreement  to resolve  a domestic  political  
dispute  in Belgium  invol ving the regional  Walloon  Parliament  – made  several  chal-
lenges  to the validity  of CETA  under  EU law before  the CJEU.  Belgium’s  principal  
objection  was that CETA  did not respect  the exclusive  jurisdiction  of the CJEU  and 
therefore  could  not ensure  the auton omy of the EU legal  order.   
100. In particular,  the Belgium  State  contended  that the CETA  tribunal  established  under  the 
agreement  would  be compelled  to interpret  EU law in a manner  similar,  in terms  of 
practical  effect,  to that described  in respect  of the BIT by the CJEU  in Achmea . Belgium  
considered  that, notwithstanding  the demarcation  of the jurisdiction  of the CETA  tri-
bunal  made  in Article  8.31 of CETA,  the CETA  tribunal  would  be required  to examine  
whether  measures  adopted  by the EU were  contrary  to CETA  in order  to determine  
whether  that measure  is inconsistent  with the EU’s  obligations  under  CETA.  Belgium  
noted  that CETA  tribunals  will not necessarily  be able to rely on an interpretation  of 
the EU measure  provided  by the CJEU  and thus may in some  circumst ances  be required  
to determine  the correct  construction  of primary  and secondary  EU law. This,  Belgium  
argued,  would  be incompatible  with the exclusive  jurisdiction  of the CJEU  over the 
definitive  interpretation  of EU law. 
43 
101. The CJEU,  however,  rejected  this argument.  The CJEU  pointed  to several  provisions  
in CETA  in order  to distinguish  it from  the BIT at issue  in Achmea . The CJEU  recalled,  
first, that, as provided  in Article  8.31(2)  of CETA,  the CETA  Tribunal  will not have 
jurisdiction  “to determine  the legality of a measure,  alleged  to constitute  a breach  of 
this Agreement,  under  the domestic  law of a Party.”  The CJEU  therefore  ruled  that the 
CETA  Tribunals  will be confined  to applying  the provisions  of CETA  and not domestic  
or EU law. The CJEU  further  noted  that, pursuant  to Article  8.31(2)  of CETA,  “in de-
termining  the consistency  of a measure  with this Agreement,  the Tribunal  may consider,  
as appropriate,  the domestic  law of a Party  as a matter  of fact” (emphasis  added)  and 
further  states  that, “in doing  so, the Tribunal  shall  follow  the prevailing  interpretation  
given  to the domestic  law by the courts  or authorities  of that Party”,  adding  that “any  
meaning  given  to domestic  law by the Tribunal  shall  not be binding  upon  the courts  or 
the authorities  of that Party”  (see paragraph  130 of  CETA  Opinion  1/17).   
102. The CJEU  considered  that the fact that the CETA  tribunal  was confined  to examining  
EU law “as a matter  of fact”  was critical  because  this would  leave  the interpretation  of 
EU law to EU courts.  The CJEU  explicitly  acknowledged  that there  would  be circum-
stances  where  the CETA  tribunals  may have  to examine  primary  and secondary  EU 
law. It considered,  however,  that this would  not threaten  exclusive  jurisdiction  of the 
CJEU  because,  first, the CETA  tribunals  would be bound  to apply  EU law in a manner  
consistent  with the CJEU’s  jurisprudence  and, second,  no judgment  of the CETA  tri-
bunals  would  bind an EU court.  The CJEU  thus concluded  that the CETA  tribunals  
would  be sufficiently  isolated  from  the EU legal  system  to protect  the autonomy  of EU 
law. 
103. The CJEU  then acknowledged  (at paragraphs  148-150) that if there  were  circumstances  
where:  
44 
“…..the  jurisdiction  of those  tribunals  would  adversely  affect  the autonomy  of 
the EU legal  order  if it were  structured  in such a way that those  tribunals  might,  
in the course  of making  findings  on restrictions  on the freedom  to conduct  busi-
ness challenged  within  a claim,  call into question  the level  of protection  of a 
public  interest  that led to the introduction  of such restrictions  by the Union  with 
respect  to all operators  who invest  in the commercial  or industrial  sector  at issue  
of the internal  market,  rather  than confine  itself  to determining  whether  the 
treatment  of an investor  or a covered  investment  is vitiated  by a defect  men-
tioned  in Section  C or D of Chapter  Eight  of the CETA.  
If the CETA  Tribunal  and Appellate  Tribunal  were  to have  jurisdiction  to issue  
awards  finding  that the treatment  of a Canadian  investor  is incompatible  with 
the CETA  because  of the level  of protection  of a public  interest  established  by 
the EU institutions,  this could  create  a situation  where,  in order  to avoid  being  
repeatedly  compelled  by the CETA  Tribunal  to pay damages  to the claimant  
investor,  the achievement  of that level  of protection  needs  to be abandoned  by 
the Union.  
If the Union  were  to enter  into an international  agreement  capable  of having  the 
consequence  that the Union  — or a Member  State  in the course  of implementing  
EU law — has to amend  or withdraw  legislation  because  of an assessment  made 
by a tribunal  standing  outside  the EU judicial  system  of the level  of protection  
of a public  interest  established,  in accordance  with the EU constitutional  frame-
work,  by the EU institutions,  it would  have  to be concluded  that such an agree-
ment  undermin es the capacity  of the Union  to operate  autonomously  within  its 
unique  constitutional  framework.”  
45 
104. The CJEU  then went  on to consider  this general  question.  It noted  (at paragraph  152) 
that Article  28.3.2  CETA  restricted  the jurisdiction  of those  Tribunals:   
“With  respect  to the jurisdiction  of the envisaged  tribunals  to declare  infringe-
ments  of the obligations  contained  in Section  C of Chapter  Eight  of the CETA,  
Article  28.3.2  of that agreement  states  that the provisions  of Section  C cannot  
be interpreted  in such a way as to prevent  a Party  from  adopting  and applying  
measures  necessary  to protect  public  security  or public  morals  or to maintain  
public  order  or to protect  human,  animal  or plant  life or health,  subject  only to 
the requirement  that such measures  are not applied  in a manner  that would  con-
stitute  a means  of arbitrary  or unjustifiable  discrimination  between  the Parties  
where  like conditions  prevail,  or a disguised  restriction  on trade  between  the 
Parties.”  
105. The CJEU  then continued  (at paragraphs  153-161) that these  restrictions  were  sufficient  
to protect  the autonomy  of the EU judicial  system:      
“It follows  from  the foregoing  that, in those  circumstances,  the CETA  Tribunal  
has no jurisdiction  to declare  incompatible  with the CETA  the level  of protec-
tion of a public  interest  established  by the EU measures  specified  in para-
graph  152 of the present  Opinion  and, on that basis,  to order  the Union  to pay 
damages.  
In the same  way,  as regards  the jurisdiction  of the envisaged  tribunals  to declare  
infringement s of obligations  contained  in Section  D of Chapter  Eight  of the 
CETA,  Article  8.9.1  of that agreement  states  explicitly  that Parties  have  the 
right  ‘to regulate  within  their territories  to achieve  legitimate  policy  objectives,  
such as the protection  of public health,  safety,  the environment  or public  morals,  
46 
social  or consumer  protection  or the promotion  and protection  of cultural  diver-
sity’.  Further,  Article  8.9.2  of that agreement  provides  that ‘for greater  cer-
tainty,  the mere  fact that a Party  regulates,  including  through  a modification  to 
its laws,  in a manner  which  negatively  affects  an investment  or interferes  with 
an investor's  expectations,  including  its expectations  of profits,  does not amount  
to a breach  of an obligation  under  this Section’.  
Moreov er, Point  1(d) and Point  2 of the Joint  Interpretative  Instrument  provide  
that the CETA  ‘will  … not lower  [the standards  and regulations  of each Party]  
related  to food safety,  product  safety,  consumer  protection,  health,  environment  
or labour  protection’,  that ‘imported  goods,  service  suppliers  and investors  must  
continue  to respect  domestic  requirements,  including  rules  and regulations’,  and 
that the CETA  ‘preserves  the ability  of the European  Union  and its Member  
States  and Canada  to adopt  and apply  their own laws and regulations  that regu-
late economic  activity  in the public  interest’.  
 It is apparent  from  reading  those  provisions  together  that the discretionary  pow-
ers of the CETA  Tribunal  and Appellate  Tribunal  do not extend  to permitting  
them  to call into question  the level  of protection  of public  interest  determined  
by the Union  following  a democratic  process.  
That is also the purport  of Point  3 of Annex  8-A to the CETA,  which  states  that 
‘for greater  certainty,  except  in the rare circumstances  when  the impact  of a 
measure  or series  of measures  is so severe  in light of its purpose  that it appears  
manifestly  excessive,  non-discriminatory  measures  of a Party  that are designed  
and applied  to protect  legitimate  public  welfare  objectives,  such as health,  safet y 
and the environment,  do not constitute  indirect  expropriations’.  
47 
 It must  be added  that the jurisdiction  of the CETA  Tribunal  to find infringe-
ments  of the obligation,  laid down  in Article  8.10 of the CETA,  to accord  ‘fair 
and equitable  treatment’  to cove red investments  is specifically  circumscribed,  
since  Article  8.10.2  lists exhaustively  the situations  in which  such a finding  can 
be made.  
In that regard,  the Parties  have  concentrated  on, inter alia, situations  where  there  
is abusive  treatment,  manifest  arbitrariness  and targeted  discrimination,  which  
reveals,  once  again,  that the required  level  of protection  of a public  interest,  as 
established  following  a democratic  process,  is not subject  to the jurisdiction  
conferred  on the envisaged  tribunal s to determine  whether  treatment  accorded  
by a Party  to an investor  or a covered  investment  is ‘fair and equitable’.  
It is accordingly  apparent  from  all those  provisions,  contained  in the CETA,  
that, by expressly  restricting  the scope  of Sections  C and D of Chapter  Eight  of 
that agreement,  which  are the only sections  that can be relied  upon  in claims  
before  the envisaged  tribunals  by means  of Section  F of that Chapter,  the Parties  
have  taken  care to ensure  that those  tribunals  have  no jurisdiction  to call into 
question  the choices  democratically  made  within  a Party  relating  to, inter alia, 
the level  of protection  of public  order  or public  safety,  the protection  of public  
morals,  the protection  of health  and life of humans  and animals,  the preservation  
of food safety,  protection  of plants  and the environment,  welfare  at work,  prod-
uct safety,  consumer  protection  or, equally,  fundamental  rights.  
In the light of the foregoing,  it must  be concluded  that Section  F of Chapter  
Eight  of the CETA  does not adversely  affect the autonomy  of the EU legal  or-
der.”  
48 
106. I should  perhaps  pause  at this point  to note that the CJEU’s  decisions  in Achmea  and 
CETA  Opinion  1/17 – and its other  decisions  relating  to the conferral  of jurisdiction  on 
other  arbitral  tribunals  – are only bindi ng insofar  as they apply  in the EU law context  
(see, to this effect,  the UK Supreme  Court  decision  in Micula  v. Romania  at paragraph  
83). While  this Court  is, therefore,  entitled  to consider  the CJEU  authorities  as they 
apply  to the Irish domestic  context  – and should,  indeed,  accord  very considerable  
weight  to those  decisions  – it must  ultimately  form  its own independent  view  in the 
context  of the quite  separate  questions  of Irish constitutional  law in respect  of whether,  
first, a CETA  Tribunal  might  be required  to interpret  the domestic  law of the State  and, 
second,  whether  such might  constitute  an impermissible  transfer  of sovereignty  under  
the Constitution.  It is important  to stress  that neither  the TEU  nor the TFEU  contain  
provisions  similar  to the Article  5 sovereignty  clause  or Article  34.1 dealing  with the 
administration  of justice  or, for that matter,  to Article  34.5.6 dealing  with the finality  
of judgments  of this Court.  
107. For my part I am, indeed,  unpersuaded  by aspects  of the reasoning  of the CJEU  in CETA  
Opinion  1/17 so far as it might  be relied  on as an authority  in the particular  and special  
sphere  of Irish  const itutional  law.  (The  judgment  naturally  binds  this Court  so far as 
the compatibility  of CETA  with EU law is concerned).  The CJEU’s  reasoning  nonethe-
less invites  the following  comments  in the particular  and somewhat  different  context  of 
Irish constitutional  law. 
108. First,  the CJEU’s  analysis  is predicated  on the basis  that it is only the repeated  award  
of damages  by a CETA  Tribunal  which  might  impact  on the capacity  of the Union  or a 
Member  State  to modify  its regulatory  legislation.   Yet one single  large  award  – or, 
even,  perhaps,  the threat  of such litigation  before  CETA  – might  be enough  to dissuade  
49 
a Member  State  to review  or change  its own legislation.  One might  here note that Arti-
cle 8.39(3)  CETA  provides  that in the calculation  of damages,  the Tribunal  “shall also 
reduce  the damages  to take account  of any restitution  of property  or repeal  or modifi-
cation  of the measure.”  (Emphasis  supplied).  There  is thus here a clear  incentive  for 
contracting  states  to dilute  or even  repeal  regulatory  measures  when  faced  with large  
claims.  
109. Second,  it seems  to me that the Court  of Justice  takes  a rather  sanguine  view  of the 
jurisdiction  of the CETA  Tribunals  with regard  to regulatory  legislation.  The views  of 
the CJEU  will not, of course,  bind the CETA  Tribunals  who will, after all, have  sole 
authority  to interpret  their own jurisdiction,  subject  only to a possible  judgment  of the 
International  Court  of Justice.  It may be noted  that in the Vattenfall  litigation,  an ICSID  
Tribunal  expressly  rejected  the argument  that it lacke d jurisdiction  to entertain  a claim  
against  Germany  under  the Energy  Charter  Treaty  in the wake  of the CJEU’s  earlier  
decision  in Achmea,  despite  all that the CJEU  had said on this very point : Vattenfall  
AB v. Federal  Republic  of Germany:   Decision  on the Achmea  issue  ICSID  Case  No. 
ARB  12/12,  31 August  2018.   
110. In effect,  therefore,  in Vattenfall  the ICSID  Tribunal  did not consider  itself  bound  by 
the decision  of the CJEU  in Achmea . If an ICSID  Tribunal  can do this in respect  of 
Achmea  why,  one might  ask, should a CETA  Tribunal  do anything  more  than pay pass-
ing attention  to the strictures  of the Court  of Justice  in Opinion  1/17?   For that matter,  
if the CETA  Tribunal  materially  disregarded  this decision  - or some  other  relevant  as-
pect of EU law - where,  one might further  ask, could  this be the subject  of effective  
review  by a national  court  apart  from  an appeal  to the CETA  Appellate  Tribunal?  The 
fact that there  is no provision  for this in the present  CETA  arrangements  seems  to me 
to highlight  a significant  structural  weakness  in the very drafting  of CETA  itself.   
50 
111. This very structural  weakness  highlights  the constitutional  frailty  of what  the Govern-
ment  currently  proposes  to do. Suppose,  for example,  a CETA  Tribunal  proceeded  to 
give an award  against  Ireland  where the Tribunal  - in the same  vein as the ICSID  Tri-
bunal’s  decision  in the Vattenfall  litigation  - had expressly  disagreed  with a key and 
pertinent  decision  of the Court  of Justice  and thereby  material ly departed  from  the re-
quirements  of EU law. As matter s stand  it would  seem  that the High  Court  would  be 
powerless  under  the provisions  of s. 25 of the 2010  Act to refuse  enforcement  of such 
a decision  even  though  this would  be manifestly  at odds  with our duty of sincere  co-
operation  under  EU law generally  and what  one might  term the “loyalty”  provision  of 
Article  29.4.4  of the Constitution  whereby  “Ireland  affirms  its commitment  to the Eu-
ropean  Union.”  Part of that commitment  to the Union  involves  respecting  and uphold-
ing the decisions  of the Court  of Justice  in the context  of the interpretation  and appli-
cation  of EU law. 
112. Third,  it would  also seem  quite  possible  that a situation  might  arise  in which  the CETA  
Tribunal  interprets  the domestic  law of the State  – including  EU law – and the State  
would  be without  recourse  if this interpretation  was erroneous.  Although  I naturally  
accept  that the CETA  Tribunal  is expressly  confined  by Article  8.31(2)  CETA  to inter-
preting  the law in force  in the State  as a matter  of fact, one could,  I think,  easily  foresee  
a situation  in which  the CETA  Tribunal  could  err in interpreting  our law as a matter  of 
fact, particularly  on a matter  of law that has not previously  been  adjudicated  on in the 
Irish courts.  In these  circumstances,  neither  the State  (nor the CJEU  for that matter)  
would have  any recourse  and, indeed,  the State  would  be obliged  to enforce  any award  
made  for the reasons  I have  outlined  above.  
113. Thus,  in sum,  it would  appear  to me that not only would  Irish courts  be obliged  to treat 
a CETA  award  as “almost  automatic”,  but Irish courts  would  also be required  to accept  
51 
such awards  even  if they were  based  upon  what  the courts  considered  to be an erroneous  
interpretation  of domestic  law (albeit  as a matter  of fact).  It is next necessary  to consider  
the implications  of these  conc lusions.  There  are clearly  implications  for both legislative  
sovereignty  and autonomy  on the one hand  and juridical  sovereignty  on the other:  these  
are considerations  which  flow directly  from  the nature  of our constitutional  order  and 
are distinct  and separate to those  questions  of EU law examined  by the CJEU  in Opinion  
1/17. I propose  to consider  these  matters  in turn. 
Part  VII: The potential  implications  of CETA  for legislative  sovereignty  
114. There  would  seem  to be two aspects  to the issue  of whether  legisla tive sovereignty  is 
potentially  compromised  by reason  of adherence  to CETA.  The first is whether  a CETA  
Tribunal  might  make  an award  against  the State  on the basis  that a legislative  measure  
enacted  by the Oireachtas  breached  the CETA  principles.  The secon d relates  to the fact 
CETA  liability  is strict  and in no sense  dependent  on questions  of fault.   
115. One should  say immediately  that it seems  likely  that a CETA  Tribunal  would  at least 
generally  defer  to the judgment  of a Contacting  State  in terms  of regulator y measures  
designed  to protect  important  social  goals  such as public  health  and the environment.  
Certainly,  in its judgment  in the CETA  Opinion  1/17 the CJEU  proceeds  on the basis  
that a CETA  Tribunal  cannot  call into question  the extent  of the public  interest consid-
erations  underpinning  EU regulatory  measures:  see paragraphs  148 and 149 of the 
Opinion.  The existing  specialist  literature  assumes  and predicts  that CETA  Tribunals  
will in fact show  deference  to regulatory  judgments  made  by the Contracting  States. As 
Schacherer  observes,  “Investment  and regulatory  measures”  in Bungenberg  and Rei-
nisch,  CETA  Investment  Law (Hart,  Beck,  Nomos,  2020)  at 247: 
52 
“A strong  argument  for a deferential  approach  is that a State’s  decision -making  
is in principle  proximate  to its society  and is embedded  in a specific  national  
context.  Public  authorities  (of a State  or of the EU) are better  situated  to assess  
the specific  societal  needs.  As far as Canada  and the EU are concerned,  regula-
tory measures  benefit  from  democratic  legitimacy.  And the domestic  legislator  
appears  to be in a better  position  to decide  certain  trade -offs than investment  
tribunals.  By according  policy -makers  deference  when  reviewing  their regula-
tory choices,  CETA  tribunals  can accord  the necessary  space  for safeguarding  
non-economic  public  interests.”  
116. If these  assumptions  prove  to be correct  – and there  is currently  no reason  to doubt  them  
– one may assume  that awards  against  this State  are likely  to be relatively  rare, should  
they happen  at all.  Many  of the individual  provisions  of CETA  - such as, e.g., Article  
8.9(1)  CETA  and Article  8.9(2)  CETA  - are designed  to reinforce  the right  of the con-
tracting  states  to achieve  legitimate  policy  objectives.    
117. As I have  already  observed,  it is true that the CJEU  expres sly stated  in its CETA  Opin-
ion 1/17 that the CETA  Tribunals  would  have  no jurisdiction  to make  awards  which  
called  into question  EU measures  based  on a weighing  of legitimate  public  policy  ob-
jectives  provided  that this did not amount  to a form  of disguised  discrimination.  As the 
Vattenfall  litigation  demonstrates  it is not altogether  clear  whether  CETA  Tribunals  
will consider  themselves  bound  in this way by the CJEU’s  comments  as to their juris-
dictional  limits.   
118. But even  if one assumes  that this will be so, the fact remains  a CETA  Tribunal  could  
still make  an award  in respect  in respect  of legislative  measures  otherwise  validly  en-
acted  by the State.  Should  this occur,  any award  of damages  will be based  on strict  
53 
liability  and not on considerations  of fault.  One must  also observe  that liability  will not 
even  be based  on considerations  of legality  under  national  law. That is significantly  
different  from  liability  under  both national  and EU law. 
119. So far as Irish national  law is concerned,  it is clear  since  the seminal  decision  of this 
Court  in Pine Valley  Developments  Ltd. v. Minister  for Environment  [1987]  IR 23 that 
there  is in general  no liability  for a mere  ultra vires  administrative  act unless  it also 
involves  the commission  of a recognised  tort or is actuate d by malice  or where  the 
public  authority  knows  it does not in fact possess  the power  which  it purports  to exer-
cise: see [1987]  IR 23 at 36, per Finlay  C.J. This was a case where  the Minister  had 
wrongfully  (albeit  in good  faith)  granted  planning  permissio n to the plaintiff  company  
but it ultimately  transpired  that the permission  in question  was invalid.  
120. This Court  ultimately  held that there  was no liability  on the part of the State,  the inva-
lidity  of the administrative  action  notwithstanding.  The plaintiff  company  had also con-
tended  that all of this amounted  to a breach  of constitutional  rights.  While  Finlay  C.J. 
was prepared  to accept  that the invalidation  of the planning  permission  caused  the com-
pany  loss, he drew  attention  to the fact that the State’s  obligation  in Article  40.3.2  to 
protect  the company’s  property  rights  was not absolute  and was qualified  by consider-
ations  of the common  good.  He then continued  (at 38): 
“I am satisfied  that it would  be reasonable  to regard  as a requirement  of the 
common  good an immunity  to persons  in whom  are vested  statutory  powers  of 
decision  from  claims  of compensation  where  they act bona  fide and without  
negligence.  Such  an immunity  would  contribute  to the efficient  and decisive  
exercise  of such statutory  powers  and would…tend  to avoid  indecisiveness  and 
delay,  which  might  otherwise  be involved.”  
54 
121. Pine Valley  was expressly  affirmed  by this Court  in Glencar  Exploration  plc v Mayo  
County  Council  (No.2)  [2002]  1 IR 84. In his judgment  Fennelly  J. stated  - for the 
avoidance  of  any doubt  - that he believed  ([2002]  1 IR 84 at 150) that “the considered  
statements  of the law made  in Pine Valley  remain  the law, despite  apparent  incon-
sistency  with…  Duff v. Minister  for Agriculture  [1997]  2 IR 22…  I do not believe  that 
[Duff] can have been  intended  to depart  from  such an important  principle  as that laid 
down  in Pine Valley.”  This passage  from  Glencar  was, moreover,  itself  quoted  and 
affirmed  in the judgments  of both MacMenamin  and Charleton  JJ. for this Court  in 
Cromane  Seafoods  Ltd. v. Minister  for Agriculture,  Fisheries  and Food,  Ireland  and 
the Attorney  General  [2016]  IESC  6, [2017]  1 IR 119. MacMen amin  J. also helpfully  
added  that Duff was certainly  decided  on its own facts  and that its status  as a preceden-
tial authority  was limited  and even  doubtful.  He also stressed  that ([2017]  1 IR 119 at 
181 that liability  for damage  “does  not automatically  flow from  a mistake  of law said 
to have  been  made  by the Minister.”   
122. This general  issue  was also considered  by Budd  J. in An Blascaod  Mór Teo. v. Com-
missioners  of Public  Works  (No. 4) [2000]  3 IR 565. Here  key sections  of certain  leg-
islation  affecting  the Blasket Islands  providing  for the compulsory  expropriation  of cer-
tain landowners  had been  found  to be unconstitutional  as discriminatory  and selective  
and were  thus held to be contrary  to Article  40.1 by this Court:  see An Blascaod  Mór 
Teo. v. Commissioners  of Public  Works  (No.3)  [2000]  1 IR 6. In the subsequent  pro-
ceedings  Budd  J. rejected  the argument  that a finding  of unconstitutionality  would  
sound  in damages  on a strict  liability  basis,  saying  ([2000]  3 IR 565 at 581):  
“In the course  of making  laws,  the legislature  frequently  has to take into account  
conflicting  individual  rights  and the exigencies  of the common  good  within  a 
process  involving  balancing  and adjusting  the scope  of rights.  There  is therefore  
55 
little justifi cation  for a regime  of strict  liability  for infringement  of a constitu-
tional  right  where  such rights  are competing  and in conflict.  In such circum-
stances,  “ubi jus, ibi remedium ” is too simple  a formula  and strict  liability  would  
in many  cases  be too low and easy a threshold  to reach.”  
123. It is implicit  in this analysis  that strict  liability  is essentially  inconsistent  with the nec-
essary  deference  and margin  of appreciation  which  must  be accorded  the Oireachtas  
when  enacting  regulatory  legislation.  This,  as we have  seen,  is the consistent  theme  
which  emerges  from  both the Irish and CJEU  case-law on this topic,  yet this is precisely  
what  CETA  proposes.   
124. An Blascaod  Mór is interesting  for another  reason.  Had the plaintiff  been  a Canadian  
investor  it would  have  been entitled  to bring  such a claim  before  a CETA  Tribunal  
where  the prospects  of success  would  seem  to have  been  high:  see the rules  regarding  
targeted  discrimination  contained  in Article  8.10(2)(d)  CETA.  This is yet another  ex-
ample  of where  a CETA  Tribunal  would  have  jurisdiction  to rule on matters  internal  to 
this State.  Of course,  had the plaintiff  succeeded  and suffered  loss and damage,  dam-
ages would  have  been  awarded  by a CETA  Tribunal  against  the State  on a strict  liability  
basis  in respect  of the loss caused  by this legislation,  even  though,  of course,  this form  
of liability  has heretofore  been  rejected  by both our courts  and the Court  of Justice  as 
inconsistent  with the necessary  autonomy  which  national  and European  legislators  
should  enjoy.  
125. Another  pertinent  example  of this kind is supplied  by the BUPA  litigation  to which  I 
have  already  alluded.  Following  the decision  of the Minister  for Health  and Children  to 
trigger  risk equalization  – so that health  insurers  with an excessive  cohort  of young  and 
healthy  consumers  could  be required  to compensate  insurers  with a large  number  of 
much  older  and sicker  consumers  – the British  insurance  company,  BUPA,  elected  to 
56 
exit the Irish health  insurance  market.  This Court  later held that the risk equalization  
schem e was ultra vires  the Health  Insurance  Act 1994  (as amended):  see BUPA  Ireland  
Ltd. v. Minister  for Health  and Children  (No.2)  [2008]  IESC  42, [2012]  3 IR 442.  
126. In the wake  of that decision  BUPA  then sued the State  for the damages  which  it said 
was caused  by its exit from  the market.  The claim  was ultimately  rejected  by Cooke  J.  
who,  in a characteristically  meticulous  judgment,  concluded  that there  was no liability  
as the Pine Valley  criteria  had not been  satisfied:  see BUPA  Ireland  Ltd. v. Minister  for 
Health and Children  (No.3)  [2013]  IEHC  103, [2014]  2 IR 67. The point  here,  of 
course,  is that if BUPA  had been  a Canadian  entity,  this is precisely  the type of case in 
which  it might  possibly  have  succeeded  before  a CETA  Tribunal,  as, indeed,  had  hap-
pened  in the earlier  Achmea  litigation  before  a BIT governed  by ICSID  rules.   I mention  
this simply  to show  (with  respect,  once  again)  that CETA  potentially  does involve  mat-
ters internal  to this State.  
127. As it happens,  the CJEU  has taken  a similar  view  with regard  to liability  of the Union  
under  Article  340 FTEU  (ex. Article  288 EC). Thus,  for example,  in FIAMM  and Fedon  
(Joined  Cases  C-120 and 121/06P,  EU: C: 2008:  476) two Italian  companies  contended  
that they had suffered  loss when  a WTO  Disputes  Panel  had autho rised  the US to im-
pose retaliatory  tariffs  on certain  products  (namely  batteries  and spectacle  cases)  con-
sequent  upon  a finding  that the Union’s  regime  for bananas  violated  WTO  rules.    
128. The CJEU  ruled  that there  could  be no liability  in those  circumstances  because  the Un-
ion had not done  anything  which  was actually  unlawful  under  Union  law. It added  nev-
ertheless  (at paragraphs  171 and 172 of the judgment)  that – in line with established  
case law –  
57 
“As regards,  more  specifically,  liability  for legislative  activity,  the Court  more-
over pointed  out at a very early  stage  that, although  the principles  in the legal  
systems  of the Member  States  governing  the liability  of public  authorities  for 
damage  caused  to individuals  by legislative  measures  vary considerably  from 
one Member  State  to another,  it is however  possible  to state that the public  au-
thorities  can only exceptionally  and in special  circumstances  incur  liability  for 
legislative  measures  which  are the result  of choices  of economic  policy… 
The Court  has there fore held in particular  that, in view  of the second  paragraph  
of Article  [340 TFEU],  the Community  does not incur  liability  on account  of a 
legislative  measure  which  involves  choices  of economic  policy  unless  a suffi-
ciently  serious  breach  of a superior  rule of law for the protection  of the individ-
ual has occurred.  The Court  has, moreover,  stated  that the strict  approach  taken  
towards  the liability  of the Community  in the exercise  of its legislative  activities  
is attributable  to two considerations.  First,  even where  the legality  of measures  
is subject  to judicial  review,  exercise  of the legislative  function  must  not be hin-
dered  by the prospect  of actions  for damages  whenever  the general  interest  of 
the Community  requires  legislative  measures  to be adopted  which may ad-
versely  affect  individual  interests . Second,  in a legislative  context  characterised  
by the exercise  of a wide  discretion,  which  is essential  for implementing  a Com-
munity  policy,  the Community  cannot  incur  liability  unless  the institution  con-
cerned  has manifestly  and gravely  disregarded  the limits  on the exercise  of its 
powers…”  (emphasis  supplied).  
129. To that extent,  therefore,  it must  be accepted  that - at least at a theoretical  level  - CETA  
represents  a potentially  significant  extension  of the non-contractual  liability  of the 
State.  Whereas  to date both this Court  and the Court  of Justice  have  recognised  the 
58 
desirability  of ensuring  that neither  the State  nor (as the case may be, the Union)  are 
exposed  to liability  in respect  of the exercise  of legis lative  functions  absent  proof  of 
something  in the nature  of grave  and manifest  error,  this will not necessarily  be the case 
under  CETA  
130. Here  it seems  to me that there  must  be consistency  between  our general  law of State  
liability  and a potential  liability  under CETA.  If, for example,  it is accepted  that the 
potential  for strict  liability  in damages  under  CETA  will not compromise  our legislative  
autonomy,  then the rule in Pine Valley  is no longer  tenable  since,  after all, that judgment  
is premised  on the basis that decisive  decision -making  required  that legislators,  minis-
ters and administrators  enjoy  some  measure  of protection  without  the threat  of a dam-
ages award.  If, on the other  hand,  one takes  the view  that Pine Valley  is correct,  then it 
would  seem  to follow that adherence  to CETA  would  necessarily  compromise  our leg-
islative  autonomy  in that the State  would  be exposed  to strict  liability  claims  for dam-
ages arising  from  mere  legislative  non-compliance  with CETA,  even  if the measures  in 
question  were  not in themselves  unconstitutional  or otherwise  ultra vires  or even  if the 
State  had acted  in perfect  good  faith by enacting  the measure  in question.  
131. As I already  have  had occasion  to remark  at other  points  in this judgment,  part of the 
difficulty  with the presen t appeal  is that it is difficult  to anticipate  the work  of the CETA  
Tribunals.  I am prepared  to allow  that awards  against  this State  are likely  to be at least 
relatively  rare. The fact remains,  however,  is that they could  happen  and that the State  
would  thereby  be exposed  to damages  claims  on a strict  liability  basis  in respect  of 
otherwise  validly  enacted  legislative  measures.   The very fact, however,  that this could  
happen  is sufficient  for constitutional  purposes,  since  to my mind  this necessarily  com-
promises  the legislative  sovereignty  of the State.  In particular,  the absence  of a Pine 
59 
Valley -style  good  faith protection  in respect  of legislative  measures  — heretofore  re-
garded  as an essential  safeguard  for the legislative  autonomy  of the Oireachtas  — is 
telling.  
Part  VIII:  Whether  CETA  Tribunals  would  compromise  the juridical  sovereignty  of the 
State , contrary  to Article  34 of the Constitution  
132. The conclusion  that the courts  would  be obliged  to treat a CETA  award  as “almost  
automatic”  gives  rise, in my mind,  to two potential  constitutional  objections,  one par-
ticular  and the other  general.  The particular  constitutional  objection  arises  from  Article  
34.5.6  which  provides  that the decision  of the Supreme  Court  “shall  in all cases  be final 
and conclusive”.  The general  objection  is that participation  in an international  tribunal  
with power  to make  binding  awards  which  are enforceable  in domestic  law is incon-
sistent  with Irish juridical  sovereignty  as recognised  by Article  5 of the Constitution.  I 
now propose  to consider  each of these  objections  in turn. 
Article  34.5.6  of the Constitution:  The Historical  Context  
133. Article  34.5.6  of the Constitution  provides  that “The  decision  of the Supreme  Court  
shall  in all cases  be final and conclusive.”  
134. The historical  origins  of this clause  are well known.  Article  66 of the Constitution  of 
the Irish Free State  had originally  provided  as follows:  
 “The  Supreme  Court  of the Irish Free State  (Saorstát  Éireann)  shall,  with such 
exceptions  (not including  cases  which  involve  questio ns as to the validity  of any 
law) and subject  to such regulations  as may be prescribed  by law, have  appellate  
jurisdiction  from  all decisions  of the High  Court.  The decision  of the Supreme  
Court  shall  in all cases  be final and conclusive,  and shall  not be reviewed  or 
capable  of being  reviewed  by any other  Court,  Tribunal  or Authority  whatso-
ever:  Provided  that nothing  in this Constitution  shall  impair  the right  of any 
60 
person  to petition  His Majesty  for special  leave  to appeal  from  the Supreme  
Court  to His Majesty  in Council  or the right  of His Majesty  to grant  such leave.”  
135. The proviso  to Article  66 allowed  for dissatisfied  litigants  to petition  the Privy  Council  
for leave  to appeal  from  a decision  of this Court.  One of the reasons  for the existence  
of this right of appeal  was, one may suppose,  a concern  in some  quarters  that the courts  
of the newly  established  Irish Free State  might  not administer  justice  with total impar-
tiality,  particularly  in cases  involving  the rights  of political  and religious  minorities  who 
retained  – or, at least,  were  perceived  to retain  - sympathy  with the Crown  and the pre-
1922  British  administration:  see generally  Mohr,  Guardian  of the Treaty:  The Privy  
Council  Appeal  and Irish  Sovereignty  (Dublin,  2016).  The right  to petition  His Majesty  
in Council  was thus retained.  
136. While  it is true that the Privy  Council  granted  leave  to appeal  in only a handful  of cases,  
the very existence  of this jurisdiction  appears  to have  been  regarded  as inconsistent  with 
Irish juridical  sovereignty.  This right  of petition  was itself  abolished  by the Constitution  
(Amendment  No. 22) Act 1933  and the validity  of that constitutional  amendment  was 
upheld  by the Privy  Council  in Moore  v. Attorney  General  of the Irish  Free  State  [1935]  
IR 472 in a judgment  delivered  in June 1935.  It is perfectly  clear  from  the case-law of 
the Privy  Council  up to its abolition  that that body  exercised  a jurisdiction  to review  
aspects  of the public  law (including  constitutional  law) of the Irish Free State  in the 
period  between  1922  and 1935.   
137. This was, moreover,  a consi derably  wider  jurisdiction  than that which  might  be exer-
cisable  by a CETA  Tribunal  in that the jurisdiction  of the Privy  Council  was not con-
fined  simply  to the award  of damages.  It could  - and did - pronounce  on a variety  of 
other  matters,  including  the interpretation  of aspects  of the Anglo -Irish Treaty  (Wigg  
and Cochrane  v. Attorney  General  of the Irish  Free  State  [1927]  IR 285);  the continued  
61 
application  of the Copyright  Act 1911  to the Irish Free State  and the interpretation  of 
aspects  of the Constituti on of the Irish Free State  (Performing  Rights  Ltd. v. Bray  UDC  
[1930]  AC 397, [1930]  IR 509) and even  the validity  of the Constitution  (Amendment  
No. 22) Act 1933  (Moore  v. Attorney  General  of the Irish  Free  State  [1935]  IR 472).  
In all of these  cases  the appeal  to the Privy  Council  was from  an earlier  decision  of this 
Court.  
138. Regardless  of the rights  or wrongs  of this matter,  it seems  fairly  clear  that in 1937  the 
contemporary  understanding  was that a decision  of this Court  was to be final and con-
clusive  and that no other  judicial  body  would  have  authority  to pronounce  upon  aspects  
of Irish law in this fashion  in a manner  which  was binding  in domestic  law. This,  in-
deed,  was the very object  which,  as a matter  of history,  Article  34.5.6  was designed  to 
achieve .  It is clear  that Irish Governments  of all hues were  very exercised  by the pro-
spect  that a decision  of this Court  might  be questioned  in any way by a body  such as 
the Privy  Council.  Indeed,  the Oireachtas  legislated  to ensure  that the decision  of that 
body in Performing  Rights  Society  was reversed,  and the successful  party  was prohib-
ited from  obtaining  any remedies  or damages  or costs:  see ss. 3 and 4 of the Copyright  
(Preservation)  Act 1929.  Of course,  in Mohr’s  words,  the Government  “was  less inter-
ested  in the finer  points  of copyright  and far more  concerned  about  winning  another  
round  in its duel with the Privy  Council”:  see Guardians  of the Treaty  at 100. 
139. Viewed,  therefore,  from  this historical  perspective  it is hard to see how the CETA  Tri-
bunal  would  be compatible  with Article  34.5.6,  at least as this provision  was originally  
understood  in 1937,  precisely  because  it does have  the power  to give binding  decisions  
on issues  concerning  aspects  of our public  law, which  decisions  are enforceable  under  
the domestic  law of the State.  This is true even  if that jurisdiction  by being  confined  
essentially  to an award  of damages  is more  limited  than would  have  been  the case in a 
62 
Privy  Council  appeal  and even  if, as the Chief  Justice  observes  in his judgment,  such 
an award  did not have  a general  erga omnes  effect.  This in itself  is not dispositive.  The 
Constitution  is, after all, a living  Constitution  which  must  be interpreted  afresh  in the 
light of our own contemporary  experience  and requirements,  especially  where  the fac-
tual circumstances  have  changed  significantly  from  1937:  see, e.g., Joyce  v. Governor  
of the Dóchas  Centre  [2012]  IEHC  326, [2012]  2 IR 666. This historical  understanding  
is nonetheless  relevant.  
Article  34.5.6:  The Contemporary  Understanding  
140. There  remains  the critical  question  of whether  the acceptance  by this State  of the juris-
diction  of the CETA  Tribunal  would  amount  to a breach  of Article  34.5.6.  It is, of 
course,  true that in certain  unusual  circumstances  even  an apparently  final decision  of 
this Court  can be re-opened.  As I have  already  indicated,  these  cases  could  include  
fraud,  fundamental  misunderstanding  or breach  of fair procedures.   
141. One thing  is clear  however:  the circumstances  in which  a judgment  could  be re-opened  
would  have  to be exceptio nal. As Murray  J. said in LP v. MP (Appeal)  [2001]  IESC  76, 
[2002]  1 IR 219 at 230: “…the  exceptional  circumstances  which  could  give rise to the 
inherent  jurisdiction  of the court  must  constitute  something  extraneous  going  to the 
very root of the fair and constitutional  administration  of justice.”  It is also plain  that the 
decision  as to whether  an earlier  decision  of this Court  should  be re-opened  could  only 
be taken  by this Court  itself  (of, in the case of alleged  fraud,  in the High  Court  if fresh  
proceed ings are commenced)  and not by any other  entity.  
142. Subject,  therefore,  to this proviso,  the critical  question  is whether  the Government  could  
ratify  an international  treaty  which  allowed  for a form  of review  of a decision  of this 
Court  by an international  arbitral  tribunal  which  has then the power  to make  binding  
decisions  which  can be enforced  in this State  (and,  indeed,  elsewhere)?  Such  a decision  
63 
would,  of course,  only be binding  inter  partes  and unlike  a court  ruling  it would  not 
have  general  erga omnes  effects.  Article  30.6(1)  CETA  further  stipulates  that such a 
decision  would  have  no effect  on the domestic  law of the State.  
143. In practice,  however,  such decisions  would  tend to acquire  their own precedential  ef-
fects,  as previous  awards  of this kind are regul arly cited  at least in specialist  textbooks  
on international  law and (perhaps  especially)  international  trade  law: see Born,  Inter-
national  Commercial  Arbitration,  Vol. III International  Arbitral  Awards  (Kluwer,  
2020)  at 4191 -4195.  Thus,  the experience  in practice  of the World  Trade  Organisation  
dispute  resolution  procedure  is that “disputes  brought  before  the Panel  and Appellate  
Body  are not limited  to an inter  partes  effect,  as every  Appellate  Body  Report  may have  
precedential  effect  in future  cases”:  Lim,  “Dispute  Settlement  in the World  Trade  Or-
ganisation:  Moving  Towards  an Acknowledgment  of Stare  Decisis” (2018)  Cambridge  
Law Review  193 at 197. Indeed,  for the purposes  of illustrating  the effect  of CETA,  I 
have  found  it necessary  to refer  to many  such arbitral  awards  in the course  of this judg-
ment.  
144. Perhaps  the first thing  to note is that it is perfectly  clear  from  the explicit  langua ge of 
CETA  itself  that in certain  circumstances  an investor  can make  a complaint  to the 
CETA  Tribunal  based  on an adverse  decision  of this Court.  This might  be in circum-
stances  where  it was contended  this Court  had acted  in breach  of fair procedures  or 
otherwise  denied  justice  to an investor.  Or it might  arise  where  this Court  had upheld  
the constitutionality  of a law enacted  by the Oireachtas  or rejected  challenges  to the 
validity  of executive  or administrative  decisions  in a manner  which  prejudiced  the in-
vestor.  
64 
145. It is true that the CETA  Tribunal  can only award  damages  (or, perhaps,  in some  in-
stances,  restitution  of property  or its equivalent  in damages)  and, unlike  the Privy  Coun-
cil prior  to 1935,  it cannot  entertain  an appeal  as such. A CETA  Tribunal  cann ot as 
such rule that a decision  of this Court  was erroneous.  Yet the constitutional  incongru-
ousness  of the High  Court  being  obliged  by the terms  of the 2010  Act and the ICSID  
Convention  to give effect  to a damages  award  made  by a CETA  Tribunal  against  the 
State  where  the subject  matter  of the complaint  was in respect  of a decision  of this Court  
is, I suggest,  all too obvious.  
146. Perhaps  all of this may be best examined  by way of an example.  Article  8.10(2)  CETA  
provides  in part as follows:  
“A Party  breaches  the obligation  of fair and equitable  treatment…if  a measure  
or series  of measures  constitutes:  
(a) denial  of justice  in criminal,  civil or administrative  proceedings,  
(b) fundamental  breach  of due process,  including  a fundamental  breach  of trans-
parency,  in judicial  and administrative  proceedings….”  
147. The denial  of justice  standard  contained  in Article  8.10(2)(a)  CETA  is one which  is 
also found  in a range  of other  parallel  investor  tribunal  arrangements,  such as Article  
1105  of the North  American  Free Trade  Agre ement  (“NAFTA”).  (NAFTA  was super-
seded  in July 2020  by the broadly  similar  United  States  – Mexico  – Canada  Agreement  
(“USMCA”)).  It is certainly  clear  from  a series  of decisions  of NAFTA  Tribunals  that 
the standard  here is strict  and requires  something  in the nature  of a “gross  denial  of 
justice”  or “manifest  arbitrariness”  (see International  Thunderbird  Gaming  Corp.  v. 
Mexico,  UNCITRAL  (26 January  2006)  (at paragraph  194) or the unjust  or arbitrary  
treatment  of an investor  (see SD Meyer  v. Canada,  UNCITRAL  (Partial  Award)(13  
November  2000)  (at paragraph  263);  or “justified  concerns  as to the judicial  propriety  
65 
of the outcome”  (Mondev  International  Ltd. v. United  States , ICSID  Award,  11 October  
2002)(at  paragraph  127).  These  awards  “suggest  a high threshold  of severity  for a ver-
dict of a denial  of justice:  only the most  severe  cases  will be considered”:  see Dumberry,  
“Treatment  of investors  and covered  institutions”  in Bungenberg  and Reinisch  eds., 
CETA  Investment  Law (Nomos,  2020)  at 266. 
148. The standard  repres ented  by Article  8.10(2)(a)  CETA  is, accordingly,  the most  basic  of 
basic  standards  of international  justice.  It is difficult  to believe  that a decision  of this 
Court  (or, for that matter,  the Court  of Appeal)  would  ever fall below  that standard  or 
would  even come  close  to so doing.  One can - I hope  - discount  this as a realistic  pos-
sibility.  
149. There  are nevertheless  dicta  to the effect  that the NAFTA  “denial  of justice”  standard  
is breached  where  the domestic  court  is guilty  of undue  delay  or where  such a court 
“administer[s]  justice  in a seriously  inadequate  way”:  see Azinian  v. Mexico , ICSID  
Award,  1 November  1999  (at paragraph  102).  (These  comments  were,  however,  pure 
dicta,  because  in that case the NAFTA  Tribunal  expressly  rejected  any argument  that 
the Mexican  courts  had behaved  in this way).  
150. If these  principles  were,  however,  to be applied  to Article  8.10(2)  CETA,  then it is 
certainly  perfectly  possible  that a CETA  Tribunal  could , for example,  hold that an Irish 
court  has been  guilty  of undue  delay.  Ther e are already  a number  of cases  in which  the 
European  Court  of Human  Rights  has found  that Ireland  has been  in breach  of Article  
6 ECHR  by reason  of undue  delay  in our legal  system:  see, e.g., McFarlane  v. Ireland  
[2010]  ECHR  1272  and Keaney  v. Ireland  [2020] ECHR  292. While  the position  re-
garding  litigation  delays  has clearly  improved  significantly  in recent  years  following,  
for example,  the establishment  of the Court  of Appeal  in October  2014,  one cannot  say 
66 
that the possibility  that a CETA  Tribunal  would  find against  Ireland  on this ground  is 
so improbable  that this could  be discounted  as just a remote  and speculative  possibility.  
151. Yet a CETA  Tribunal  finding  that, for example,  that this Court  had denied  the due 
process  rights  of an investor  contrary  to Article 8.10(2)(a)  CETA  or, for that matter,  
Article  8.10(2)(b)  CETA  (and that accordingly  it would  be appropriate  to make  a bind-
ing award  of damages  which  would  be enforceable  under  domestic  law) would  in sub-
stance  amount  to a form  of collateral  attack  by an outside  judicial -style  body  in respect  
of a judgment  which  Article  34.5.6  of the Constitution  declares  to be final and unap-
pealable.  It would  in substance  be doing  indirectly  that which  Article  34.5.6  expressly  
forbids.  As this Court  observed  in Walsh  v. Minister  for Justice  [2019]  IESC  54, [2020]  
1 IR 488 at 559:  
“This  case illustrates  the important  fact that Article  34.5.6  remains  relevant  at 
all stages  of the proceedings.  If it is apparent  that an application  does not dis-
close  grounds  capable  of being  argued  as justifying  the exercise  of the In re 
Greendale  Developments  Ltd. (No. 3) jurisdiction,  then it would  be a breach  of 
the terms  of Article  34.5.6,  and the object  of that provision  would  be defeated  
if the court  were  to entertain  such a claim.”  
152. Much the same  can be said in respect  of CETA.  Since  this possibility  is expressly  pro-
vided  for in CETA  I find myself  coerced  to the conclusion  that the ratification  of this 
agreement  would  be unconstitutional  in its present  form  as contravening  Article  34.5.6 . 
This conclusion  is supported  by — but is not dependent  upon  — the historical  under-
standing  of this provision.  
153. As I propose  to explain  further  with regard  to our accession  to the jurisdiction  of the 
European  Court  of Human  Rights,  it would  be otherwise  if the decision  of the CETA  
Tribunal  were  not binding  and enforceable  in domestic  law. The fact that such decisions  
67 
are made  almost  automatically  binding  and enforceable  in this manner  is, for me, the 
decisive  consideration:  as I have  already  observed,  givin g effect  to CETA  Tribunal  
awards  via the mechanism  of s. 25 of the 2010  Act it is the equivalent  of a crossing  of 
a legal  Rubicon  which,  in a dualist  state such as ours,  marks  the strict  separation  be-
tween  the realm  of public  international  law on the one hand and domestic  law on the 
other.  
Would  accepting  the jurisdiction  of the CETA  Tribunals  amount  to a breach  of Article  
5 of the Constitution?  
154. It is clear  from  the provisions  of Article  8.31 CETA  (set out above)  that a CETA  Tri-
bunal  cannot  directly  pronounce  on the validity  of actions  of the executive  or the Oi-
reachtas  or judicial  decisions.  If a CETA  Tribunal  were  to have  been  given  such a ju-
risdiction,  the conclusion  that such would  be unconstitutional  would  be almost  beyond  
dispute . Thus,  for example,  counsel  for the State,  Mr. Cush  SC, accepted  that such a 
proposal  would  amount  to a circumvention  of the provisions  of Article  34.3.2  of the 
Cons titution  which  confines  the jurisdiction  to declare  a law to be unconstitutional  to 
the High  Court,  the Court  of Appeal  and to this Court.  In any event,  the jurisdiction  to 
determine  to invalidate  or annul  decisions  taken  by the executive  or the Oireachtas  is a 
core feature  of the juridical  sovereignty  of this State  and, for that matter,  that of other  
states  in respect  of their own executive,  parliamentary  and judicial  decisions.  
155. This is reflected  in not only our own rules  of private  international  law but also, for that 
matter,  public  international  law. Our courts  have,  for example,  consistently  held that 
they have  no jurisdiction  to pronounce  on the actions  of the United  Kingdom  sovereign  
(including  its armed  forces)  as to do so would  represent  an unjustified  intrusion  into the 
sovereignty  of that State:  see, e.g., McElhinney  v. Williams  [1995]  3 IR 382; Adam  v. 
68 
Secretary  of State  for Home  Affairs  [2001]  1 IR 47; Short  v. Ireland  (No. 2) [2006]  3 
IR 297; Brady  v. Choiseul  [2016]  IEHC  552, [2016]  2 IR 337.  
156. This is well illustrated  by the decision  of this Court  in Short  (No.2) . Here  the plaintiffs  
sought  to bring  a claim  for damages  against  British  Nuclear  Fuels  Ltd. in respect  of its 
operation  of a nuclear  power  plant  in the UK. In the High  Court  British  Nuclear  Fuels  
argued  that the plaintiffs’  claim  insofar  as it related  to the granting  of licenses  and per-
missions  by a foreign  government  fell outside  the jurisdiction  of the Irish Courts  as the 
validity  of the granting  of any such authorisations  could  not be reviewed  here.  Peart  J. 
upheld  the contention  of British  Nuclear  Fuels  in relation  to jurisdiction  and that deci-
sion was upheld  by this Court.  As Fennelly  J explained:(  [2006]  3 IR 297 at 315):   
“What  is at issue  is the jurisdiction  of an Irish Court  to determine  the lawfulness  
or validity,  under  the law of the United  Kingdom,  of administrative  decisions  
made  in that jurisdiction  in accordance  with national  law and procedures.  It 
seems  to me elementary  that our courts  have  no power  to review  the lawfulness  
of administrative  decisions  made  by English  administrative  bodies  under  Eng-
lish law, any more  than the English  courts  would  have  corresponding  power  to 
pass judgment  on Irish administrative  decisions.  The courts  of each country  
alone  have  the power  to review  the legality,  within  their own frontiers,  of deci-
sions  of their own government  and administration.”  
157. Fennelly  J. continued  ([2006]  3 IR 297 at 318-319):  
 “I do not believe  it to be necessary  to lay down  any broad  principles  in order  to 
determine  the present  case.  We are not concerned  with sovereign  immunity  or 
acts of state.  We are concerned  with the much  simpler  and narrower  question  of 
whether  the courts  of one state have  jurisdiction  to determine  the validity  of 
administrative  acts of the authorities  of another  state which  are not claimed  to 
69 
have  any legal  effect  outside  the borders  of the latter  state…  The ultimate  ques-
tion in the present  case is whether  the courts  of one Mem ber State  (Ireland)  have  
jurisdiction  to determine  the lawfulness  and validity  of administrative  proce-
dures  and decisions  of another  Member  State  (the United  Kingdom),  where,  as 
is claimed  here,  those  decisions  have  rendered  lawful,  by authorising  them  to 
be carried  out within  the boundaries  of that other  state,  activities  alleged  to cause  
damage  in the first Member  State.   
 
I am satisfied  that Peart  J. was correct  to hold that the High  Court  does not have  
that jurisdiction…  The principle  of comity  requires  that the courts  of one state 
abstain  from  pronouncing  on matters  such as the regulatory  claims,  in respect  
of which  the primary  and obvious  jurisdiction  rests with the courts  of another  
state.   In addition,  there  are practical  considerations.  Only  an Engl ish court  will 
be familiar  with English  law and procedure.  It is a matter  for English  courts,  
where  they are obliged  to do so, to interpret  national  law in the light of Com-
munity  law. It would  be patently  absurd  for the courts  of another  Member  State  
to exercise  such power.  Apart  from  anything  else, there  would  be a real risk of 
conflicting  decisions,  if the same  administrative  act were  to be reviewed  accord-
ing to the laws of two or more  Member  States.”  
 
158. As Kingsmill  Moore  J. memorably  explained  in his classic judgment  in Buchanan  v. 
McVey  Ltd. [1954]  IR 89, similar  concerns  explain  the traditional  rule that one state 
will not give effect  to the penal  or taxation  laws of another  state,  save to the extent  that 
such has been  modified  by international  agreement .  
70 
159. This is also reflected  by general  principles  of public  international  law such as the Act 
of State  doctrine  whereby  (again,  absent  international  agreement)  the courts  of one state 
will not, at least generally  speaking,  inquire  into or pronounce  upon  the validity  of the 
actions  jure imperii  of another  state.  (If there  are exceptions  to this rule, they tend to be 
confined  to cases  of outrageous  violations  of human  rights,  such as the iniquitous  laws 
directed  against  the Jewish  community  by the National  Socialist regime  in Germany  
between  1933 -1945.  Even  then,  it may be a case of one state refusing  to give effect  to 
the implications  of such oppressive  laws within  its own territories:  see, e.g., Oppenhei-
mer v. Cattermole  [1976]  AC 249.)  
160. A classic  example  here is provided  by the decision  of the US Supreme  Court  in Banco  
Nacional  de Cuba  v. Sabbatino  376 US 398 (1964) . This,  as it happens,  was a case 
decided  at the height  of the Cold  War and just two years  after the Cuban  missile  crisis.  
As part of the tit-for-tat retaliation  which  took place  between  the US and Cuba  follow-
ing the Castro  revolution  in December  1959,  the Cuban  government  sought  to expro-
priate  property  held by US citizens  in Cuba.  These  measures  included  the seizure  of 
sugar  owned  by a Cuban  company,  Compania  Azucarera  Vertientes -Camaguey  de 
Cuba  (“CAV”),  which  itself  was owned  by American  shareholders.  An American  com-
modity  broker,  Farr,  Whitlock  & Co., had originally  agreed  to buy this sugar  from  
CAV,  but after it was seized,  they bought  it directly  from  the Cuban  government.  After  
receiving  the sugar  however,  Farr,  Whitlock  & Co. did not pay the Cuban  government,  
but it instead  paid Mr. Sabbatino,  CAV’s  legal  representative  in the US. The Cuban  
government  then sued Sabbatino  to recover  the monies  due in respect  of the sugar.  The 
case essentially  turned  on whether  the expropriation  of the sugar  by the Cuban  govern-
ment  within  Cuba  would  be regarded  by the US courts  as lawful.   
71 
161. In his judgment  for the majority,  Harlan  J. held (i) that the Cuban  State  bank had the 
right  to sue in the US courts  and (ii) that by virtue  of the act of state doctrine  in public  
international  law, the US courts  had no jurisdiction  to rule on the actions  of the Castro  
regime  when  it expropriated  the assets  of US companies  without  compensation  follow-
ing the Communist  revolution  in 1959.  As he put it (376 US at 438):  
“Therefore,  rather  than laying  down  or reaffirming  an inflexible  and all-encom-
passing  rule in this case,  we decide  only that the Judicial  Branch  will not exam-
ine the validity  of a taking  of property  within  its own territory  by a foreign  sov-
ereign  government,  extant  and recognized  by this country  at the time of suit, in 
the absence  of a treaty  or other  unambiguous  agreement  regarding  controlling  
legal  principles,  even  if the complaint  alleges  that the taking  violates  customary  
international  law.”  
162. The reasoning  in Banco  Nacional  de Cuba  reflects  the traditional  concerns  regarding  
State  sovereignty  in public  international  law. Putting  it more  prosaically  in an Irish 
context,  the Oireachtas  could  not, for instance,  purport  to give our courts  the jurisdic-
tion to pronounce  on the validity  of decisions  taken  by the Canadian  Sovereign  within  
its own jurisdiction.  This would  clearly  represent  an extravagant  exercise  of extra  ter-
ritorial jurisdiction  which  would  not be recognised  by the general  principles  of public  
international  law. Accordingly,  any such legislation  would  be plainly  unconstitutional  
as being  contrary  to Article  29.8 of the Constitution:  see, e.g., Minister  for Justi ce and 
Equality  v. Pal [2022]  IESC  12, per O’Donnell  C.J. (especially  at paragraphs  54-58). 
163. Although  it is perfectly  clear  from  the provisions  of Article  8.31(2)  CETA  that a CETA  
Tribunal  could  not pronounce  directly  on the validity  of the acts (whether  judicial,  ex-
ecutive  or legislative)  of the Irish State,  the conclusion  that it could  do so indirectly  is, 
I think,  inescapable.  
72 
164. Consider  the following  example.  Let us suppose  that Canadian  investors  invest  heavily  
in bonds  issued  by a particular  Irish bank.  Following  a financial  crash  it transpires  that 
the bank  will quickly  become  insolvent  without  considerable  State  financial  support  
which  is then injected  by the Government  into the company.  Acting  pursuant  to legis-
lation  enacted  by the Oireachtas  the Minis ter for Finance  seeks  and obtains  court  orders  
giving  him or her control  of the company.  As part of the bank  resolution  process,  losses  
are compulsorily  imposed  on both senior  and subordinated  bondholders  pursuant  to this 
legislation.  Let us further  suppos e that the constitutionality  of this legislation  is ulti-
mately  upheld  by this Court  in a case brought  by these  same  investors.  
165. Annex  8B of CETA  is a special  rule dealing  with public  debt.  It provides  that no claim  
can be made  in respect  of a negotiated  public debt restructuring  arrangement,  save for 
a claim  that this was done  in a discriminatory  manner  contrary  to Article  8.6 or Article  
8.7 of CETA.  All of this seems  to imply  that other  forms  of compulsory  debt restruc-
turing  could  amount  to a breach  of CETA  and such a conclusion  is re-enforced  by the 
provisions  of Article  8.18 CETA.   
166. In these  circumstances  it is entirely  possible  that the CETA  Tribunal  would  award  com-
pensation  to the investors  on the basis  that the legislation  providing  for compulsory  
burden  sharing  on the part of the bondholders  amounted  to a measure  having  an equiv-
alent  effect  to that of an expropriation,  contrary  to Article  8.12 and Annex  8A of CETA.  
If that were  to happen,  this would  in effect  be tantamount  to saying  that this Court’s  
decision  on the constitutional  question  was wrong  or in some  way unjust.  One may 
assume  that in such circumstances  the non-Canadian  bond  holders  would  be quick  to 
explore  ways  in which  they could  be compensated  as well.  
167. If we take the further  example  of where  a licence  or permission  of some  kind (such  as, 
for example,  an exploration  licence  or a planning  permission)  is denied  to a Canadian  
73 
investor.  Let us assume  that the investor  elects  to proceed  directly  to the CETA  Tribunal  
(as it would  be entitled  to do) and does not challenge  the decision  (whether  by way of 
judicial  review  or otherwise)  before  the Irish courts.  If, however,  in that example  the 
CETA  Tribunal  awarded  damages  to the investor  against  Ireland  this would  have  to be 
regarded  as a collateral  attack on the original  decision  itself  in a manner  in which  in the 
case of, say, a planning  decision,  would  amount  in substance  to a circumvention  of, for 
example,  the leave  requirement  contained  in s. 50 of the Planning  and Development  
Act 2000.  This is clear ly borne  out by two recent  authorities  on this point,  one a decision  
of this Court  and the other  a decision  of the Court  of Appeal:  see Shell  E & P Ireland  
Ltd. v. McGrath  [2013]  IESC  1, [2013]  1 IR 147 and Express  Bus v. National  Transport  
Authority  [2018 ] IECA  236, [2019]  2 IR 680. 
168. In Shell  E & P the Minister  for Communications  had made  a pipeline  consent  order  
pursuant  to s. 40 of the Gas Act 1976  and a compulsory  acquisition  order  pursuant  to s. 
32 of the same  Act in respect  of plots  of land owned  by some of the defendants.  When  
the plaintiff  company  instituted  proceedings  claiming  that the defendants  had ob-
structed  its rights  of way over the lands  in question,  the defendants  counterclaimed  and 
pleaded  that the relevant  administrative  decisions  which  had conferred  the rights  of way 
were  themselves  invalid.  Clarke  J. described  these  latter  claims  as ([2013]  1 IR 247, 
265):  “a challenge  to a public  law measure  designed  to underlie  a claim  for damages  
rather  than a defence  to proceedings  in which  reliance  is placed  on the measure  to main-
tain a claim  against  the challenger.”  He then went  on to add ([2013]  1 IR 247, 266) that 
a “party  cannot  circumvent  judicial  review  requirements  by the device  of commencing  
plenary  proceedings  or by mounting  a counterclaim  in such proceedings.”   I took a 
similar  view  in Express  Bus holding  that the plaintiff  could  not simply  seek damages  
74 
against  National  Transport  Authority  without  having  first sought  to challenge  the va-
lidity  of the decision.  Just as in Shell  E & P, the Court  of Appeal  struck  out the claim  
for damages  as amounting  in substance  to an endeavour  to by-pass the time limits  con-
tained  in Ord. 84 RSC  in respect  of judicial  review  proceedings.  
169. The real question  is whether  allowing  this form  of quasi -appeal  to the CETA  Tribunal  
by which  the latter  body  could  pronounce  indirectly  upon  the validity  of the actions  of 
this State  is objectionable  from  the point  of view  of the sovereignty  provisions  of Arti-
cle 5. It is true that, as this Court  put it in Crotty , sovereignty  means  the right  to say 
“yes”  or “no”.  Yet it is equally  true that, as O’Donnell  J explained  in Pringle  v. Ireland  
the very exercise  of sovereignty  also entails  having  the right  to bind the State  by means  
of the treaty -making  power  vested  in the Government  by Article  29.5.1.  Every  treaty  
by definition  binds  the State  to a particular  course  of action  and it is necessarily  implicit  
in the constitutional  scheme  of things  that the Government  can in principle  commit  the 
State  to a particular  course  of action in international  law by means  of such treaties.  The 
State  has prospered  in the field of international  relations  by means  of entering  agree-
ments  or treaties  which,  to one extent  or another,  involve  a sharing  or pooling  of sov-
ereignty.  While  this is most obviously  true in the case of the European  Union  (which,  
admittedly,  is dealt  with by a separate  constitutional  regime),  it is also a feature  of other  
important  international  bodies  such as the United  Nations  and the Council  of Europe.  
170. In one sense,  therefore,  the decision  to ratify  CETA  amounts  to the very exercise  of 
sovereignty  as described  by O’Donnell  J. in Pringle.  The more  specific  question  in the 
present  case,  however,  is whether  the ratification  of an international  agreement  allow-
ing for the creation of supra -national  judicial  style  tribunals  with power  to make  binding  
and enforceable  awards  of damages  against  the State  compromises  the juridical  sover-
eignty  of the State,  contrary  to Article  5 of the Constitution.  
75 
171. To my mind  the entire  scheme  of the Constitution  is that, subject  to certain  exceptions,  
the judicial  power  of the State  can be exercised  only by persons  appointed  as judges  
under  the Constitution.  It is true that the Constitution  allows  for certain  exceptions  to 
this rule. First,  Article  37.1 permits  the judicial  power  to be vested  in persons  who are 
not judges  in certain  limited  and non-criminal  cases.  The unspoken  premise,  however,  
of Article  37.1 is that the persons  exercising  these  limited  judicial  powers  will, in one 
way or another,  be part of the Irish administrative  apparatus.  The whole  context  and 
language  of this provision  (“…duly  authorised  by law to exercise  such functions  and 
powers….”)  is that the office  holder  or body  in question  has been  vested  with these  
powers  by the Oireac htas and, while  independent  in the discharge  of these  powers,  is 
nonetheless  ultimately  answerable  - in the very broadest  sense  of that term - to the Oi-
reachtas  and the Government.   
172. It is also true that, as the Chief  Justice  observes  in his judgment,  there  have  been  in-
stances  of where  the Oireachtas  has seen fit to give statutory  tribunals  the power  to 
make  binding  awards:  see, e.g., the Hepatitis  C Compensation  Tribunal  Act 1997.  In 
that particular  instance,  however,  that Tribunal  was simply  administering  an ex gratia  
scheme  and it might  be argued  that it did not involve  the administration  of justice.  But 
whatever  the merits  of this approach  and regardless  of whether  it would  or would  not 
survive  a Zawelski -style  constitutional  challenge,  the fact remains  that all such bodies  
remain  within  the orbit  of the High  Court  and are amenable  to judicial  control  by the 
courts  established  under  Article  34.1 of the Constitution.  This will not be true in respect  
of the awards  of the CETA  Tribunal.  
173. Second,  Article  29.7.2  envisages  that judicial  powers  may be exercised  in the context  
of any cross -border  dispute  resolution  by any institution  established  under  the aegis  of 
76 
the Belfast  Agreement  (1998).  Third,  Article  29.9 allows  the State  to ratify  the Rome  
Statute  of the International  Criminal  Court.   
174. Yet these  exceptions  simply  serve  to re-enforce  the impression  that the judicial  power  
of — and, indeed,  in respect  of — the State  is otherwise  reserved  for judges  appointed  
under  the Constitution.  This very point  was made  by Kennedy  C.J. in Lynham  v. Butler  
(No.2)  [1933]  IR 74 at 99 when  he stated:  
“…the  judicial  power  of the State  is, like the legislative  power  and the executive  
power,  one of the attributes  of sovereignty,  and a function  of government…It  is 
one of the activities  of a government  of a civillised  State  by which  it fulfills  its 
purpose  of social  order  and peace  by determining  in accordance  with the laws 
of the State  all controversie s of a justiciable  nature  arising  within  the territory  
of the State,  and for that purpose  exercising  the authority  of the State  over per-
sons and property….”  
175. In the present  case,  the effect  of Chapter  8 of CETA  is to allow  a body  composed  of 
persons  who are not judges  and who are not appointed  by or answerable  to any of the 
institutions  of the State  to exercise  judicial  powers  in respect  of the State  and, critically,  
to give judgment  which  is prima  facie  binding  and enforceable  under  our own domestic  
law. In some  ways  the difference  between  the majority  and the minority  in this case 
really  comes  down  to this point.  
176. As I understand  the judgment  of the Chief  Justice,  he considers  that CETA  really  re-
mains  outside  the orbit  of our legal  system  and that it does not seek to duplicate  or 
parallel  our own legal  system.  I agree  that there  might  be circumstances  where  the es-
tablishment  of such a tribunal  with power  to make  binding  awards  against  the State  
would  be constitutionally  unobjectionable.  This,  however,  would  be in circumstances  
77 
where  the disputed  events  and actions  took place  outside  the State  and where  the tribu-
nal in question  essentially  replaced  or at least supplemented  a foreign  court  which  
would  otherwise  have  had jurisdiction  in the matter.  
177. CETA  is differ ent in that it involves  disputes  which  directly  and immediately  concern  
the public  law in this State  and (potentially)  the administration  of justice  in this State  
which  have  been  brought  by private  individuals  and companies.  In my view  inasmuch  
as CETA  permits these  particular  disputes  to be the subject  of a binding  adjudication  
by a CETA  Tribunal  which  is prima  facie  enforceable  in this State  this is plainly  in-
compatible  with the juridical  sovereignty  of the State.  I would  therefore  hold for this 
reason  that the ratification  by the Government  of CETA  in its present  form  would  in-
fringe  Article  5 of the Constitution.  
178. It is also not fanciful  to suppose  that such a ruling  from  a CETA  Tribunal  could  curtail  
the State’s  capacity  to legislate  in accordance  with its own democratic  and constitu-
tional  framework  in a manner  which  goes beyond  the de minimis  or the purely  theoret-
ical. It is possible  to envisage  similar  rulings  in a range  of areas  such as planning  con-
trol, land zoning,  the licensing  of mineral  resources,  taxation  or rent control.  If such 
were  to occur,  then for the reasons  I have  already  sought  to explain,  this would  com-
promise  the essence  of the State’s  legislative  sovereignty,  contrary  to Article  5 of the 
Constitution.   
Part  IX: Accession  to the European  Court  of Human  Rights  and the European  Conven-
tion of Human  Rights  Act 2003  
179. In some  respects,  our accession  to the jurisdiction  of the European  Court  of Human  
Rights  in 1952  and the enactment  much  later of the European  Convention  of Human  
Rights  Act 2003  are, so to speak,  to our own legal  system  what  Wagner  is to music  or 
Joyce  is to literature.  In all three  cases  the pre-existing  rules  were  stretched  to their 
78 
limits  and all three  instances  represent  examples  of exceptionalism  in their own fields  
which  does not necessarily  translate  in favour  of any successors  seeking  to emulate  
them.  This is perhaps  especially  true of the ECHR  itself.  Created  in exceptional  cir-
cumstances  and dedicated  to the case of personal  liberty  and ensuring  minimum  stand-
ards of civiliz ed behavior  within  the Contracting  States,  it has long been  a favourite  of 
the law and our constitutional  order.  
180. It is perfectly  true that both the Optional  Protocol  (between  1952  and 1998)  and (since  
the treaty  revision  in 1998)  Article  34 of the European  Convention  of Human  Rights  
allows  an individual  to bring  a petition  to the European  Court  of Human  Rights  con-
tending,  inter alia, that a decision  of this Court  amounts  to a violation  of the ECHR.  
Some  examples  – which  are by no means  comprehensive  – inclu de Norris  v. Ireland  
(condemning  laws on homosexuality);  O’Keeffe  v. Ireland  [2014]  ECHR  96, (2014)  59 
EHRR  15 (no effective  remedy  for Article  3 violation);  Independent  Newspapers  v. 
Ireland  [2017]  ECHR  567 (excessive  awards  in defamation  cases);  Keaney  v. Ireland  
[2020]  ECHR  292 (undue  delay  and lack of effective  remedy).  In some  instances  – e.g., 
O’Keeffe  and Independent  Newspapers  – the Court  has awarded  damages.  
181. One might  fairly  ask: what  is the difference  between  the right  of petition  to the ECtHR  
on the one hand  and the right  to bring  proceedings  before  investor  tribunals  on the other,  
such that accession  to the latter  engages  fundamental  issues  in relation  to Article  5 and 
Article  34.5.6,  whereas  this is not true in respect  of the ECHR?  To my mind,  there is 
but one essential  difference,  namely,  that, unlike  the ECtHR,  the investor  tribunal  de-
cisions  have  been  accorded  binding  legal  status  such that their awards  are made  en-
forceable  in our domestic  law.  
182. That is not the case with regard  to decisions  of the ECtHR  and, indeed,  the Oireachtas  
to date has carefully  refrained  from  according  such a status  to these  decisions.  Thus,  
79 
for example,  s. 4 of the European  Convention  of Human  Rights  Act 2003  (“the  2003  
Act”)  merely  states  our courts  must  take judicial  notice  of decisions  of the ECtHR  and 
that when  “interpreting  and applying  the Convention  provisions”,  they must  take “due  
account  of the principles”  laid down  by these  decisions.  The 2003  Act does not state, 
however,  that such decisions  of the ECHR  have  binding  legal  status  in our domestic  
law. If it did, it would  to that extent  be unconstitutional  because,  contrary  to the express  
requirements  of Article  5 and Article  34.5.6,  it would  in substance  allow  another  court  
– other  than this Court  – to deliver  a final judgment  in a dispute  between  the citizen  and 
the State  in a manner  which  was binding  in our domestic  law. 
183. In passing  it may also be noted  that this Court  has never  accorded  the status  of a binding  
decision  to a judgment  of the ECtHR.  Thus,  for examp le, in Society  for the Protection  
of Unborn  Children  (Ireland)  Ltd. v. Grogan  (No. 5) [1998]  4 IR 343 the High  Court  
had granted  an injunction  in August  1992  restraining  the distribution  of certain  infor-
mation  in relation  to the provision  of abortion  services.  A few months  later the ECtHR  
held that this ban contravened  Article  10 ECHR:  see Open  Door  Counselling  Ltd. v. 
Ireland  (1993)  15 EHRR  244. Around  the same  time the 14th Amendment  of the Con-
stitution  Act 1992  took effect,  allowing  for the distribution  of such information.  
184. In its judgment  delivered  in March  1997  a majority  of this Court  held that the High  
Court  had been  correct  at the time to grant  the injunction,  but that the law had been  
changed  in the meantime  by the passage  of the 14th Amendment  so that it would  no 
longer  be appropriate  to grant  such an order.  There  was, however,  no suggestion  at all 
that the judgment  of the ECtHR  in the meantime  in Open  Door  Counselling  had had 
this effect.  Indeed,  this was accepted  by the two dissenting  judges,  Denham  and Keane  
JJ. Thus,  for example,  in her judgment  Denham  J. referred  to the ECtHR  judgment  in 
Open  Door  and observed  that “while  that decision  is not part of our domestic  law, it is 
80 
a persuasive  analysis  of the situation”:  [1998]  4 IR 343 at 376. Keane  J. was likewise  
of the view  that that judgment  “is not, of course,  in any sense  bindin g on this Court”:  
see [1998]  4 IR 343 at 391. 
185. Thus,  regardless  of the rights  and wrongs  of the matter  under  discussion,  the key point  
which  emerges  for our purposes  from  Grogan  (No. 5) is that a decision  of the ECtHR  
does not have  binding  force  and effect  so far as the domestic  law of this State  is con-
cerned . These  decisions  are, of course,  nevertheless  binding  at the level  of international  
law and the State  has given  a solemn  political  commitment  that it will honour  and give 
full effect  to them.   
186. Narrow  as these  distinctions  may be, they are nonetheless  vital ones.  It can thus be said 
that while  our accession  to the ECtHR  (and,  for that matter,  the 2003  Act) came  close  
to the constitutional  boundaries,  it did not transgress  them,  precisely  because  these  
judgments  have  never  been  given  binding  status  and enforceable  effects  in our domestic  
law. 
187. That,  therefore,  is the all essential  — if, admittedly,  narrow  — difference  between  the 
ECHR  and the CETA  investor  tribunals.  
Part  X: Other  specific  constitutional  provisions  dealing  with  the  
administration  of justice  by trans -national  bodies  
188. In this part, I propose  to itemise  and discuss  briefly  specific  constitutional  provisions  
dealing  with the administrative  of justice  by trans -national  bodies  or entities.  These  are 
admittedly  heterogeneous  examples:  the common  theme  is that the Constitution  
(whether  as originally  enacted  or by later specific  amendment)  has made  express  pro-
vision  for such bodies  by way of derogation  from  the general  constitutional  rule that 
81 
the admi nistration  of justice  is vested  in the courts  established  for the purposes  of Ar-
ticle 34 of the Constitution.  I propose  to start with Article  29.2.  
Article  29.2 
189.  Article  29.2 of the Constitution  provides:  
“Ireland  affirms  its adherence  to the principle  of the pacific  settlement  of inter-
national  disputes  by international  arbitration  or judicial  determination.”  
190. This provision  clearly  reflects  the language  of Article  II of the General  Treaty  for Re-
nunciation  of War as an Instrument  of National  Policy  (“the  Kellogg-Briande  Pact”)  of 
1928  of which  the (then)  Irish Free State  was one of the original  signatories.  Both  the 
history  and text of Article  29.2 are directed  towards  international  arbitration  or judicial  
determination  of international  disputes  as between  the State  and other  states.  Article  
29.2 is thus concerned  with the resolution  of issues  of public  international  law. It pro-
vides,  for example,  constitutional  authority  – if, indeed,  such were  needed  – for our 
acceptance  of the jurisdiction  of the Internatio nal Court  of Justice  and other  forms  of 
judicial  determinations  of international  disputes  at the level  of public  international  law 
such as the World  Trade  Organisation’s  Dispute  Resolution  Panel  procedures  which  
are designed  to resolve  inter-State  trade  disputes.  It has, however,  no application  to a 
case of this kind which  concerns  the binding  determination  of essentially  private  claims  
brought  by investors  before  a CETA  Tribunal.  As Butler  J. put it (at paragraph  103 of 
her judgment)  the “international  disputes  which  are to be the subject  of international  
arbitration  are between  nations  and…Article  29.2 is not intended  to cover  financial  
claims  by commercial  entities  against  the State.”  
191. One must,  of course,  acknowledge  that there  may perhaps  be cases  where  private  claims  
brought  by private  parties  could  be compromised  by the State  in the interests  of the 
82 
pacific  settlement  of an international  dispute  with another  state.  In the words  of a lead-
ing international  law scholar,  this is an “established  internationa l practice  reflecting  
traditional  international  theory”:  see Henkin,  Foreign  Affairs  and the Constitution  
(1972)  at 262. 
192. A good  example  from  international  law practice  in this regard  is provided  by the Algiers  
Agreement  of 1981  between  the United  States  of America  and the Islamic  Republic  of 
Iran. The Algiers  Agreement  provided  for the resolution  of the hostage  crisis  following  
the unlawful  capture  of US diplomatic  personnel  at its embassy  in Tehran.  The essence  
of the agreement  was that both count ries agreed  to accept  the jurisdiction  of the Iran-
United  States  Claims  Tribunal  which  would  have  the power  to make  binding  adjudica-
tions  in respect  of all claims  brought  by their respective  nationals  against  the other  state.  
Part of this involved  the extinguishment  of claims  pending  before  the US courts  and 
their transfer  to the Claims  Tribunal.  
193. In Dames  & Moore  v. Regan  453 US 654 (1981)  the US Supreme  Court  held that the 
US President  could  properly  exercise  the executive  power  to conclude  an agreement  of 
this kind and rejected  a challenge  to its constitutionality.  As Rehnquist  J. observed  (at 
679):  
“Not  infrequently  in affairs  between  nations,  outstanding  claims  by nationals  of 
one country  against  the government  of another  country  are ‘sources  of friction’ 
between  the two sovereigns.  United  States  v. Pink 315 US 203, 225 (1942).  To 
resolve  these  difficulties,  nations  have  often  entered  into agreements  settling  the 
claims  of their respective  nationals.”  
194. For my part, I consider  that, in view  of the provision s of Article  29.5.2,  this State  could  
in principle  properly  enter  into a specific  agreement  of this kind as part of the pacific  
settlement  of an international  dispute  with another  state. This would,  I think,  be so even  
83 
if it involved  the renunciation  of the jurisdiction  of the Irish courts,  provided,  of course,  
that the claimants  were  provided  with rights  and remedies  broadly  comparable  to those  
prevailing  in our own legal  system.   
195. One thing,  however,  is clear:  this is not the background  to the establishmen t of the 
CETA  Tribunals.  These  Tribunals  will not have  been  established  to resolve  inter-State  
claims  in the realm  of public  international  law: they rather  concern  the resolution  of 
private  claims  made  against  the State  by private  investors.  The CETA  Tribu nals are 
instead  intended  to operate  in addition  to or to supplement  the operation  of national  
court  systems  and, generally  speaking,  to assuage  the concerns  of international  inves-
tors that they might  not be treated  fairly  by either  the executive,  legislat ive or judicial  
branches  of the country  in which  they are investing.   
196. In these  circumstances,  Article  29.5.2  - which,  in fairness,  was not really  relied  on by 
the respondents  in the context  of this appeal  - has no relevance  to the establishment  of 
the CETA  Tribunals.  
Article  29.4.6  
197. As I have  already  observed,  Article  29.4.6  gives  constitutional  immunity  to “laws  en-
acted,  acts done  or measures  adopted  by the State”  which  are “necessitated”  by the 
obligations  of membership  of the European  Union.  One of those  obligations  is con-
tained  in Article  267 TFEU  in that it provides  a mechanism  whereby  national  courts  
can refer  a point  of European  Union  law to the CJEU  for a binding  adjudication.  Article  
267(3)  TFEU  imposes  a binding  obligation  on courts  of last resort  to make  a reference,  
save for special  cases  such as interlocutory  matters  or where  the issue  is acte clair : see 
generally,  for example,  Commission  v. France  (C-416/17,  EU: C; 2018:  811);  Consor-
zio Italian  Management  (C 561/19,  EU:C:  2021:  799) and Randstad  Italia  SpA (C-
497/20,  EU: C: 2021:  799).  In some  circumstances  Member  States  may be liable  in 
84 
damages  where  such a court  of last resort  improperly  fails to make  such a reference:  
see, e.g., Köbler  (C-224/01,  EU: C; 2003/  513);  Randstad  Italia  SpA (C-497/20 , EU: 
C: 2021:  799) and more  generally,  Varga,  The Effectiveness  of the Köbler  Liability  in 
the National  Courts  (Hart,  2018).  
198. There  could,  I think,  be little enough  doubt  but that the general  Article  267 TFEU  ju-
risdiction  – involving  as it does binding  decisions  given  by the Court  of Justice  in the 
course  of inter  partes  litigation  and which  may also involve  the disapplication  of na-
tional  law – requires  the protection  of Article  29.4.6,  since  it clearly  impacts  on the 
exclusive  role of the courts  in the administration  of justice  in Article  34.1 and the final-
ity of decisions  of this Court  (Article  34.5.6).  
199. One may immediately  observe,  of course,  that the Article  267 TFEU  jurisdiction  of the 
Court  of Justice  is in some  respects  broader  than that which  will be enjoyed  by CETA  
investor  tribunals.  The CJEU  gives  binding  decisions  as to the law of European  Union  
which  not only bind the parties  and the Irish courts,  but which  also have  erga omnes  
effects.  Under  the Simmenthal  doctrine  (Simmenthal  SpA (C-106/77,  EU: C: 1978:  49) 
the Court  of Justice  can disapply  (and thereby  effectively  nullify)  a provision  of na-
tional  law. On the other  hand,  it should,  however,  be said that the jurisdiction  of the 
CETA  tribunals  to award  damages  against  contracting  states  would  appea r to be more  
extensive  in practice  than that enjoyed  by the Court  of Justice,  since  that latter  court  
will only award  damages  for a breach  of EU law where  that breach  is a “sufficiently  
serious”  one: see, e.g., Randstad  Italia  SpA (C-497/20,  EU: C: 2021:  799)(at  paragraph  
80). 
200. No one suggests,  of course,  that this provision  (Article  267 TFEU)  is directly  relevant  
to this appeal.  Rather,  however,  it provides  another  illustration  of how provision  for 
85 
transnational  adjudication  with binding  domestic  effects  is catered  for by means  of an 
existing  and specific  constitutional  amendment  within  our existing  constitutional  order.  
Article  29.7 
201. Article  29.7.2  of the Constitution  provides  as follows:  
 “Any  institution  established  by or under  the [Belfast]  Agreement  may exercise  
the powers  and functions  thereby  conferred  on it in respect  of all or any part of 
the island  of Ireland  notwithstanding  any other  provision  of this Constitution   
conferring  a like power  or function  on any person  or any organ  of State  ap-
pointed  under or created  or established  by or under  this Constitution.  Any power  
or function  conferred  on such institution  in relation  to the settlement  or resolu-
tion of disputes  or controversies  may be in addition  to or in substitution  for any 
like power  or function  conferred  by this Constitution  on any such person  or 
organ  of State  as aforesaid.”  
202. Article  29.7 was inserted  by the 19th Amendment  of the Constitution  Act 1998  to allow  
the State  to ratify  the Belfast  Agreement.  The first sentence  of Article  29.7.2  is designed  
to allow  any cross -border  bodies  established  under  that Agreement  to exercise  part of 
the executive  power  of the State,  the provisions  of Article  28.2 notwithstanding.  The 
second  sentence  of Article  29.7.2  provides  that where  any judicial  or judicial -type func-
tions  are transferred  to these  institutions,  such powers  may lawfully  be exercised  by 
them  “in addition  to or in substitution  for any like power  or function”  conferred  on the 
courts  by the Constitution  itself.  
203. While  this is a specific  provision  designed  to deal with a specific  issue,  it again  shows  
that – just as with Article  29.9.  and the International  Criminal  Court  – that all derogation  
or possible  derogations  from  the juridical  sovereignty  of the State  have  heretofore  been  
sanctioned  by means  of a specific  constitutional  amendment.  
86 
Part  XI: The Jurisdiction  of the Joint  Committees  
204. There  remains  the question  of the jurisdiction  of the Joint  Committees.  Article  26.1 
CETA  provides  for a Joint  Committee  consisting  of the European  Union  and Canada.  
This Committee  is responsible  for all questions  relating  to trade  and investment  activi-
ties between  the contracting  parties  and the implementation  and application  of CETA:  
see Article  26(1)(3)  CETA.  Article  26.3(1)  CETA  provides  that the Joint  Committee  
shall “for the purposes  of attaining  the objectives  of this Agreement,  have  the power  to 
make  decisions  in respect  of all matters  when  the Agreement  so provides.”  
205. Article  26.3(2)  CETA  provides  that:  
“The  decisions  made  by the CETA  Joint  Committee  shall  be binding  on the 
Parties,  subject  to the completion  of any necessary  internal  requirements  and 
procedures,  and the Parties  shall  implement  them.  The CETA  Joint  Committee  
may also make  appropriate  recommendations.”  
206. The most  important  powers  of the Joint  Commit tee include,  first, the power  to “consider  
or agree”  on amendments  to CETA  (Article  26.1(5)(e)  CETA)  and second,  the power  
to “adopt  interpretations  of the provisions  of the Agreement,  which  shall  be binding  
on” the CETA  investor  tribunals:  see Article  26.1(5)(e)  CETA.   
207. There  are a number  of striking  features  regarding  this aspect  of CETA.  First,  no provi-
sion is made  for any judicial  supervision  of any decisions  of the CETA  Joint  Commit-
tee. Second,  their decisions  are expressed  to be “binding”  on the Member  States.  Some  
of these  decisions  under  Article  26.1(5)( e) CETA  interpreting  the provisions  of CETA  
could  concern  matters  such as technical  barriers  to trade  (Chapter  4, CETA),  tariffs  and 
trade  facilitation  (Chapter  5, CETA)  or trade  subsidies  (Chapter  7, CETA).  These  in-
terpretative  decisions  would  be binding  on the CETA  Tribunals:  see Article  26.3(2)  
CETA.  
87 
208. It is perhaps  important  to state that the power  of amendment  of CETA  is unproblematic.  
Article  30.2(1)  CETA  envisages  that the parties  may agree  to amen d the Agreement  in 
accordance  with their own “respective  internal  requirements.”  In the case of the Proto-
cols and the Annexes  to CETA  the Joint  Committee  may also take the initiative  in the 
case of amendment,  but here again  the approval  of the parties  in accordance  with their 
own internal  requirements  is required:  see Article  30.2(1)  CETA.   It is clear  from  the 
CJEU’s  decisions  in Singapore  Opinion  2/15 and CETA  Opinion  1/17 that the consent  
of the Member  States  in accordance  with Article  218(8)  TFEU  is required  in respect  of 
any such amendments  insofar  as any such amendments  affect  the jurisdiction  of the 
CETA  Tribunals  under  Chapter  8 of CETA  since  this concerns  a competenc e of the 
Member  State s. This means  in turns  that in the case of Ireland  the amendment  would  
have  to be laid before  Dáil Éireann  and the appropriate  consent  of that body  obtained  
under  Article  29.5.2  of the Constitution.  
209. Different  considerations  apply,  howe ver, in the case of the power  of interpretation  given  
to the Joint  Committees  by Article  26.1(5)(e)  CETA . These  interpretative  powers  are 
not really  powers  of “interpretation”  in any true, conventional  sense  of the term.  They  
are rather  a quasi -legislative  mechanism  where  the Joint  Committees  can oversee  and, 
if necessary,  curb or reverse,  the actions  of the CETA  Tribunals  by means  of an inter-
pretative  decision.  These  interpretative  decisions  would  essentially  amend,  supplement  
or otherwise  vary the text of CETA  in much  the same  way as a national  legislature  
might  reverse  the effect  of a court  decision  by an appropriate  change  in the law. This is 
made  clear  by paragraph  6(c) of the Joint  Interpretative  Document  on CETA  between  
the European  Union  and Canada  (OJ L 11, 14th January  2017)  which  provides  that: 
“In order  to ensure  that Tribunals  in all circumstances  respect  the intent  
of the Parties  as set out in the Agreement,  CETA  includes  provisions  
88 
that allow  Parties  to issue  binding  notes  of interpretation.  Canada  and 
the European  Union  and its Member  States  are committed  to using  
these  provisions  to avoid  and correct  any misinterpretation  of CETA  by 
Tribunals.”  
210. All of this would  take place  in a context  where  there  is no provision  for judicial  super-
vision  or oversight  in respect  of this power  of “interpretation .” Nor are there  any guid-
ing principles  contained  in CETA  itself  setting  any potential  limits  to this soi-disant  
power  of interpretation.  All of this means  is that the Joint  Committee  could  effectively  
take it upon  themselves  to effect  wholescale  changes  in the text of CETA  by means  of 
these  “interpretative”  rulings.  Perhaps  many  of these  rulings  would  be for the better  and 
might  well ensure  the CETA  Tribunals  more  faithfully  reflected  the wishes  of the draft-
ers. Yet the fact remains  that in this regard  the Joint  Committee  would  not be subject  
to any democratic  oversight.  
211. Whereas  Ireland’s  consent  would  be required  in respect  of actual  amendments  of 
CETA,  this would  not necessarily  be true in respect  of other  decisions  of the Joint  
Committee  concerning  the interpretation  of CETA.  These  interpretative  decisions  
would  then become  binding  on the CETA  Tribunals  as well as, of course,  this State.   
212. As I have  just indicated,  what  is described  as interpretative  ruling  of this kind would 
generally  amount  in substance  to an amendment  of the text of CETA.  There  would  be 
no necessary  parliamen tary input  from  Ireland  before  such an interpretative  decision  
was adopted  by the Joint  Committee  and even  though  such an interpretation  would  
generally  involve  material  changes  in substance  to the text of an international  agree-
ment  having  a charge  on public  funds.  Specifically,  there  is no procedure  envisaged  by 
these  provisions  of CETA  whereby  the consent  of Dáil Éireann  could  be obtained  in 
89 
respect  of what  in such circumstances  might well amount  to such material  changes  to 
the text of CETA  in the manner  required  by Article  29.5.2.  of the Constitution  
213. Article  5 of the Constitution  declares  that the State  is a sovereign  and democratic  state.  
Democracy  is thus made  an indispensable  feature  of the very constitutional  identity  of 
the State  and the provisions  of Article  15.2.1,  Article  16, Article  28.4,  Article  29.5.2  
and Article  47 are just some  of the provisions  of the Constitution  which  give practical  
effect  to this commitment  to democratic  legitimacy  and control.  The creation  of CETA  
Joint  Committees  with these  powers  to make  binding  decisions  for CETA  Tribunals  
(and,  thus,  ultimately  for the State)  by means  of these  interpretative  rulings  and in re-
spect  of whose  activi ties the State  will have  no guarantee  of being  able to exert  direct  
control  or influence  means  that the necessary  democratic  control  pre-supposed  by the 
Constitution  simply  has not been  shown  to be present.  This is especially  so given  that, 
as I have  just said, in practice  these  interpretative  rulings  would  generally  amount  in 
substance  to an amendment  of the text of CETA.  
214. All of this is to say that in view  of the fact that Chapter  8 of CETA  concerns  matters  
which  are reserved  competences  of the Member  States, the internal  constitutional  pro-
cedures  of this State  means  that any amendments  to such an international  agreement  
must  be approved  by Dáil Éireann  in accordance  with Article  29.5.2  of the Constitution  
where  (as here)  it involves  a charge  on public  funds. This requirement  applies  irrespec-
tive of whether  CETA  is expressly  amended  in accordance  with Article  30.2 CETA  or 
indirectly  by means  of interpretative  rulings  issued  by the Joint  Committee.  
215.  In these  circumstances,  I find myself  obliged  to conclude  that in this respect  the ratifi-
cation  of CETA  would  also violate  the democracy  guarantee  of Article  5 of the Consti-
tution  insofar  as (i) Article  26.1(5)(e)  CETA  permits  the Joint  Committee  to issue  in-
terpretative  rulings  which  bind the CETA  Tribunals;  (ii) these interpretative  rulings  
90 
amount  in substance  to material  amendments  of  the text of CETA  itself  (even  if not 
formally  expressed  to be such)  and  (iii) where  the parliamentary  supervision  provided  
for in such circumstances  by Article  29.5.2  of the Consti tution  is not present.  
Part  XII:  Overall  Conclusions  
216. There  is no doubt  but that this appeal  presents  many  complex  issues.  Once  one accepts  
- as I believe  one must  - that ratification  of CETA  is not an obligation  which  is neces-
sitated  by our membership  of the European  Union  for the purposes  of Article  29.4.6  of 
the Constitution,  then after this long discussion  the essential  question  really  is whether  
it is open  to the State  to participate  in a treaty  which  provides  for a form  of  alternative  
justice  system  enabling  private  parties  to sue the State  for damages  in respect  of our the 
application  or enforcement  of our general  public  law, which  awards  are then made  bind-
ing and enforceable  under  our domestic  law, together  with a system  of Joint  Commit-
tees with powers to make  binding  decisions  regarding  the interpretation  of CETA.  
217. At one level,  one could  adopt  a pragmatic  stance  to this question  and say once  again  
that the strong  likelihood  is that there  will ultimately  be very few cases  of this kind 
against  this State. This appeal,  however,  ultimately  presents  a matter  of principle  and, 
to adopt  the famous  words  of Alderson  B. in Winterbottom  v. Wright  (1842)  10 M. & 
W. 109 at 155, if we go this one step in order  to uphold  the constitutionality  of CETA  
investor  tribunals,  then there  is no reason  why we should  not go another  fifty.                                                                                                                                                                                                                                                                                                                                                                                                                                                              
218. If this could  be done  with CETA  investor  tribunals,  there  would  then be no reason  why 
a similar  mechanism  could  not be adopted  at a domestic  level  by the Oireachtas  in large  
swathes  of other  areas  of the law as well,  thus hollowing  out the system  of justice  which  
is so carefully  delineated  in Article  34 to Article  38 of the Constitution  in a manner  
which  has never  previously  been  contemplated.  One may equally  say that the Consti-
tution  contemplates  only one justice  system,  namely,  that provided  for in Article  34 et 
91 
seq. To this extent,  the provisions  of the Constitution  prescribing  the separation  of pow-
ers and providing  for the distribution  of powers  to the various  institutions  of State  are 
all impliedly  closed  categories  in that they simply  contemplate  one executive  (the Gov-
ernment),  one legislature  (the Oireachtas)  and one system  of justice  (the courts  created  
under  Article  34 of the Constitution).  Insofar  as the Constitution  departs  from  that 
model  (e.g.,  allowing  for preliminary  references  to the CJEU  under  Article  267 TFEU  
or in relation  to the resolution  of disputes  arising  from  the operation  of cross -border  
bodies  established  under  the Belfast  Agreement  or the International  Criminal  Court  or 
the pooling  of executive,  legislative  and judicial  powers  with the various  institutions  of 
the European  Union),  it is either  only by reason  of a specific  constitutional  amendment  
allowing  this to be done  or in the unusual  and special  context  of the pacific  settlement  
of an international  disputes  under  Article  29.2.  
219. Just as significantly,  the CETA  Joint  Committees  are given  significant  powers  to make  
binding  decisions  both for the State  and for CETA  Tribunals  regarding  the interpreta-
tion of CETA  in circumstances  where  no provision  is made  for judicial  or parliamentary  
control  of such decisions.  In these  circumstances,  there  are insufficient  checks  and bal-
ances  to ensure  that the key constitutional  objective  of democratic  legitimacy  – a cor-
nerstone  of the Article  5 guarantee  - is assured.  
Summary  of Conclusions  
220. In summary,  therefore,  I would  conclude  as follows:  
221. First,  so far as the standard  of review  is concerned,  I do not consider  it necessary  to 
determine  whether  this is a case governed  by the “clear  disregard”  test given  that I am 
of the view  that the ratification  of CETA would  clearly  breach  specific  constitutional  
boundaries,  express  or implied,  as objectively  interpreted  and construed  by this Court  
92 
222. Second,  since  the Court  of Justice  has made  clear  in its CETA  Opinion  1/17 that ratifi-
cation  of CETA  requires  the consent  of each Member  State,  the ratification  by the State  
of CETA  is not a “necessitated  obligation”  of Union  law for the purposes  of Article  
29.4.6  of the Constitution.  This means  in turn that the issue  in the present  appeal  reduces  
itself  to whether  the ratification  of CETA  by executive  act following  Dáil approval  for 
the purposes  of Article  29.5.2  would  be unconstitutional.  
223. Third,  it is clear  from  the terms  of the ICSID  (Washington)  Convention  and the judg-
ment  of the UK Supreme  Court  in Micula  that assuming  the procedural  formalities  have  
been  complied  with and in the absence  of some  highly  unusual  defence  such as fraud,  
the High  Court  enjoys  no real discretion  in the matter  and has little option  but to give 
effect  to any award  of a CETA  Tribunal.  
224. Fourth,  while CETA  tribunal  awards  in respect  of this State  are likely  to be rare, the 
fact remains,  however,  is that they could  happen.  In those  circumstances  the State  
would  thereby  be exposed  to damages  claims  on a strict  liability  basis  in respect  of 
otherwise  validly enacted  legislative  measures.   The very fact, however,  that this could  
happen  is sufficient  for constitutional  purposes,  since  to my mind  this necessarily  com-
promises  the legislative  sovereignty  of the State,  thereby  violating  Article  5 of the Con-
stitution.  In particular,  the absence  of a Pine Valley -style  protection  in respect  of legis-
lative  measures  - heretofore  regarded  as an essential  safeguard  for the legislative  au-
tonomy  of the Oireachtas  - is telling.  
225. Fifth,  the effect  of CETA  is to allow  a body  composed  of persons  who are not judges  
and who are not appointed  by or answerable  to any of the institutions  of the State  to 
exercise  judicial  powers  in respect  of the State  and, critically,  to give judgment  which  
is prima  facie  binding  and enforceable  under our own domestic  law. In my view  this is 
plainly  incompatible  with the juridical  sovereignty  of the State.  I would  therefore  hold 
93 
that the ratification  by the Government  of CETA  in its present  form  would  infringe  
Article  5 of the Constitution  read in conjunction  with Article  34.1. 
226. Sixth,  the creation  of CETA  Joint  Committees  with the powers  to make  binding  inter-
pretative  decisions  for the State  in respect  of important  aspects  of trade  policy  and in 
respect  of whose  activities  the State  will have  no guarantee  of being  able to exert  direct  
control  or influence  means  that the necessary  democratic  control  is not present.  In these  
circumstances,  the conclusion  that the ratification  of CETA  would  also violate  the de-
mocracy  guarantee  of Article  5 of the Constit ution  is inevitable.  
227. It follows,  therefore,  that I would  allow  the appeal  of the plaintiff.  I would  accordingly  
grant  a declaration  to the effect  that the ratification  by the Government  of CETA  would  
be unconstitutional  inasmuch  as its provision  for invest or tribunals  with powers  to make  
binding  and enforceable  awards  in respect  of State  liability  would  compromise  our leg-
islative  and juridical  sovereignty,  contrary  to Article  5 of the Constitution  read in con-
junction  with Article  15 and Article  34. I would  also grant  a declaration  that ratification  
of CETA  would  infringe  Article  34.5.6  of the Constitution  in that it would  purport  to 
allow  another  court  or tribunal  to go behind  the finality  and conclusiveness  of a decision  
of this Court  by making  a binding  award of damages  against  the State  in respect  of a 
decision  of this Court.  
Part  XIII:  Curing  the unconstitutionality  
228. It is clear  from  all that I have  just stated  that the Government  could  not proceed  in a 
constitutionally  acceptable  manner  to ratify  CETA  as matters  stand.   I emphasise  the 
latter  words.   There  are, however,  certain  circumstances  in which  the Government  and 
the Oireachtas  could  nonetheless  give effect  to CETA  if certain  legislative  changes  were  
to be made.  I stress  here,  of course,  that this is entirely  a matter  for the Government  and 
the Oireachtas.  The Government  might  not, for example,  wish  to proceed  with CETA  
94 
in those  circumstances  or the Oireachtas  might  not wish  to pass the appropriate  legis-
lative  changes.  I am simply  indicating  what  while  the ratification  of CETA  cannot  be 
ratified  by Dáil resolution  in its present  form,  it would  nevertheless  be possible  to ratify  
CETA  with the appropriate  legislative  changes  which  ensured  that the constitutional  
identity  of the State  and its sovereignty  was thereby  safeguarded.  I shall  now endeavour  
to explain  precisely  what  I mean.  
229. First,  under  no circumstances  could  CETA  be ratified  in its present  form  simply  by 
means  of a resolution  of Dáil Éireann  under  Article  29.5.2  of the Constitution  because,  
as I have  indicated  at various  points  in this judgment,  this method  of giving  effect  to 
CETA  Tribunal  decisions  amounts  in substance  to an amendment  of s.25 of the 2010  
Act. It is important  to be clear  about  this: there  is absolutely  nothing  wrong  in s. 25 of 
the 2010  Act insofar  as it generally  seeks  to give effect  to the ICSID  and New  York  
Conventions.  The difficulty  here is that s. 25 of the 2010  Act – designed  as it was to 
give effect  to conventional  arbitral  awards  in respect  of standard  commercial  arbitration  
– has been  pressed  into service  for a different  purpose  entirely,  namely,  to give effect  
on a more  or less automatic  basis  to the decisions  of the CETA  Tribunal.  This amounts  
in substance  to a considerable  broadening  of the scope  and purpose  of s. 25 of the 2010  
Act for which  there has to be the appropriate  legislative  base in the manner  that Article  
15.2.1  of the Constitution  requires.  It would  accordingly  be necessary  that the appro-
priate  legislation  - and not simply  a Dáil resolution  under  Article  29.5.2  - modifying  or 
supple menting,  for example,  s. 25 of the 2010  Act (and perhaps  other  similar  items  of 
legislation  as well)  be enacted  by the Oireachtas  as a whole.  
230. Second,  while  such legislation  is necessary,  this in itself  would  not be sufficient.   The 
Constitution  does not permit the Government  to ratify  CETA  nor the Oireachtas  to en-
act the appropriate  legislation  giving  effect  to that decision  for so long as the defences  
95 
to enforcement  of a CETA  Tribunal  award  under  the ICSID  and the New  York  Con-
ventions  respectively  remain  as circumscribed  as they currently  are. The gravamen  of 
the constitutional  objection  which  I have  upheld  is that, upon  ratification  of CETA  as 
is currently  proposed,  the High  Court  would  be virtually  powerless  to refuse   the en-
forcement  of a CETA  Tribunal  award  even  where  that award  is in substance  at odds  
with either  our general  constitutional  identity  and fundamental  constitutional  values  on 
the one hand  or our general  EU obligations  of loyalty  to the institutions  of Union  and 
upholding  the integrity  of Union law on the other.  
231.  In some  ways  the key to this is the analysis  of the ICSID  Convention  contained  in the 
joint judgment  of Lord  Lloyd -Jones  and Lord  Sales  for the UK Supreme  Court  in Mic-
ula v. Romania.  While  they noted  that the conventional  view  of the ICSID  Convention  
is that it permits  review  by a national  court  only on grounds  relating  to the authenticity  
of any award  sought  to be enforced,  they ([2020]  1 WLR  1033  at 1056)  also thought  it 
was “arguable”  that Article  54(1),  by framing  the relevant  obligation  as to enforcement  
as an obligation  to treat an award  under  the Convention  as if it were  a final judgment  
of a local  court,  allows  certain  other  defences  to enforcement  which  are available  in 
local  law in relation  to such a final judgment  to be raised. 
232. In effect,  therefore,  it is open  to the Oireachtas  to build  on what  was said in Micula  and 
to spell  out in legislative  form  the defences  to the enforcement  of such a final judgment  
of the CETA  Tribunal  in the manner  tacitly  contemplated,  for example.  by Article  54(1)  
of the ICSID  Convention.  If, therefore,  the range  of domestic  defences  in respect  of 
applications  to enforce  ICSID  (or, for that matter,  the New  York  Convention  applica-
tions)  concerning  CETA  Tribunal  awards  currently  provided  for in the 2010 Act were  
legislatively  broadened  in the manner  I have  just indicated,  then in principle  ratification  
of CETA  following  the enactment  of such legislation  might  lawfully  proceed.   
96 
233. While  not wishing  to be prescriptive,  it would  be necessary  at a minimum  to move  from  
the present  virtually  automatic  enforcement  procedure  to a situation  where  the High  
Court , when  called  upon  to give effect  to a CETA  Tribunal  award  (as distinct  from  an 
ordinary  commercial  arbitration  award)  under  either  the ICSID  Convention  or New 
York  Convention  and s. 25 of the 2010  Act, was expressly  empowered  by that new 
legislation  to refuse  to give effect  to that award  where  it considered  that: 
(a) the award  materially  compromised  the constitutional  identity  of the State  or funda-
mental  principles  of our constitutional  order,  or 
(b) the award  materially  compromised  our obligation  (reflected  in Article  29.4.4  of the 
Constitution)  to give effect  to EU law (including  the Charter  of Fundamental  Rights  
and Freedoms)  and to preserve  its coherence  and integrity.  
234. Thus,  for example,  if a CETA  Tribunal  were  in the course  of its award  to refuse  to 
follow  a material  decision  of the Court  of Justice  directly  on point,  then CETA  could  
only be constitutionally  ratified  in a manner  conforming  with our general  constitutional  
obligation  in Article  29.4.4  to give effect  to EU law if the High  Court  were  to be in-
vested  with the express  power  to refuse  enforcement  of such a CETA  Tribunal  award  
on this specific  ground.   
235. The same  naturally  holds  true where  the award  materially  compromised  our own con-
stitutional  fundamentals  and constitutional  identity.  While  this category  is, perhaps,  
never  closed,  it would,  for example,  embrace  circumstances  where  the High  Court  con-
sidered  that the CETA  award  proposed  to be enforced  was at odds  in some  material  
way with the legislative  and juridical  autonomy  of the State.    
236. All of this is another  way of saying  once  again  that the fundamental  constitutional  ob-
jection  to CETA  in its current  form  is that such CETA  Tribunal  awards  are in substance  
97 
converted  almost  automatically  into judgments  enforceable  in this State  in circum-
stances  where  the High  Court  has been  deprived  of its capacity  to supervise  such awards  
on the ground  that they respect  the constitutional  identity  and values  of this State,  to-
gether  with our general  duty to uphold  the coherence  and integrity  of EU law. This 
fundamental  constitutional  objection  would  accordingly  be cured  if the Oireachtas  were  
to amend  the 2010  Act so that the High  Court  were  to be expressly  invested  with this 
power  in respect  of the enforcement  of decisions  of the CETA  Tribunal.  
237. All of this, however,  potentially  lies in the future  and, to repeat,  remains  a matter  for 
the Government  and the Oireachtas  to consider  and deliberate.  It is sufficient  to say 
that, absent  such potential  legislative  changes,  the plaintiff’s  claim  that CETA  cannot  
constitutionally  be ratified  in its present  form  must  therefore  be upheld  and his appeal  
must  accordingly  be allowed.