Investment Treaty Arbitration

Investment Treaty Arbitration: Ireland

Overview of investment treaty programme

1. What are the key features of the investment treaties to which this country is a party?

Ireland

BIT Contracting Party or MIT

Substantive protections

Procedural rights

Fair and equitable treatment (FET)

Expropriation

Protection
and security

Most-favoured-nation (MFN)

Umbrella clause

Cooling-off period

Local courts

Arbitration

None in force as far as BITs are concerned. Ireland is a signatory to the Energy Charter Treaty. As far as is known there have been no cases under this Treaty and as such any further comment is difficult. It is believed in the ADR community that a significant multinational oil company that has experienced long-running problems with a significant energy project in the Republic of Ireland came close to bringing a case. However, no such case was brought unless there was an UNCITRAL arbitration or other form of arbitration that the parties have agreed to keep confidential.

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

FTAs/EPAs

Substantive protections

Procedural rights

Fair and equitable treatment (FET)

Expropriation

Protection and security

Most-favoured-
nation (MFN)

Umbrella clause

Cooling-off period

Local courts 6

Arbitration

None in force.

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

Qualifying criteria - any unique or distinguishing features?

2. What are the distinguishing features of the definition of “investor” in this country’s investment treaties?

Ireland

Issue

Distinguishing features in relation to the definition of ‘investor’

 

Ireland presently has no BITs in force. Since 2013 the European Union has competence in this area on behalf of its members save for instances where exceptions/exemptions have been sought for specific treaties. No such exemption was sought by the Republic of Ireland

3. What are the distinguishing features of the definition of "investment" in this country’s investment treaties?

Ireland

Issue

Distinguishing features in relation to the concept of ‘investment’

 

As and when the Republic of Ireland signs an investment treaty as per the now lapsed treaty with the Czech Republic, it would be possible to consider this issue and other relevant points.

Substantive protections - any unique or distinguishing features?

4. What are the distinguishing features of the fair and equitable treatment standard in this country’s investment treaties?

Ireland

Issue

Distinguishing features of the fair and equitable treatment standard

 

Whilst there was a BIT between the Republic of Ireland and the Czech Republic that has lapsed no such treaties are presently in place. Ireland has ceded authority to the EU in this area.

5. What are the distinguishing features of the protection against expropriation standard in this country’s investment treaties?

Ireland

Not applicable.

6. What are the distinguishing features of the national treatment/most-favoured-nation treatment standard in this country’s investment treaties?

Ireland

Issue

Distinguishing features of the ‘national treatment’ and/or ‘most favoured nation’ standard

 

Whilst Ireland has active arbitral bodies such as the local branch of the Chartered Institute of Arbitrators, which has about 750 members, and since 2010 has had prior domestic and international legislation consolidated into one piece of legislation which adopts the UNCITRAL Model Law it does not have any current BITs in its own right.

7. What are the distinguishing features of the obligation to provide protection and security to qualifying investments in this country’s investment treaties?

Ireland

Not applicable.

8. What are the distinguishing features of the umbrella clauses contained within this country’s investment treaties?

Ireland

Not applicable.

9. What are the other most important substantive rights provided to qualifying investors in this country?

Ireland

Procedural rights in this country’s investment treaties

10. Are there any relevant issues related to procedural rights in this country’s investment treaties?

Ireland

Not applicable.

11. What is the status of this country’s investment treaties?

Ireland

Not applicable.

Practicalities of commencing an investment treaty claim against this country

12. To which governmental entity should notice of a dispute against this country under an investment treaty be sent? Is there a particular person or office to whom a dispute notice against this country should be addressed?

Ireland

Not applicable.

13. Which government department or departments manage investment treaty arbitrations on behalf of this country?

Ireland

Not applicable.

14. Are internal or external counsel used, or expected to be used, by the state in investment treaty arbitrations? If external counsel are used, does the state normally go through a formal public procurement process when hiring them?

Ireland

Internal/External
Counsel

Not presently applicable. If it did arise external counsel would likely be used and no formal public procurement process would necessarily arise. Public procurement processes do otherwise arise but in circumstances where work is specialist they may not arise.

Practicalities of enforcing an investment treaty claim against this country

15. Has the country signed and ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)? Please identify any legislation implementing the Washington Convention.

Ireland

Washington Convention implementing legislation

Yes – 2010 Arbitration Act.

16. Has the country signed and ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention)? Please identify any legislation implementing the New York Convention.

Ireland

New York Convention implementing legislation

Yes – 2010 Arbitration Act.

17. Does the country have legislation governing non-ICSID investment arbitrations seated within its territory?

Ireland

Legislation governing non-ICSID arbitrations

2010 Arbitration Act.

18. Does the state have a history of voluntary compliance with adverse investment treaty awards; or have additional proceedings been necessary to enforce these against the state?

Ireland

Not applicable.

19. Describe the national government’s attitude towards investment treaty arbitration

Ireland

Attitude of government towards investment treaty arbitration

As previous answers have suggested – there is no attitude towards investment arbitration qua the state in its own right contracting with other jurisdictions re BITs. Since 2013 the Irish government has accepted that the EU has competence in this area.

20. To what extent have local courts been supportive and respectful of investment treaty arbitration, including the enforcement of awards?

Ireland

Attitude of local courts towards investment treaty arbitration

No applications relating to BITs have been made. But otherwise local courts are pro-arbitration.

National legislation protecting inward investments

21. Is there any national legislation that protects inward foreign investment enacted in this country? Describe the content.

Ireland

Not specifically. As a common law country in the European Union with a system of courts that allow for review of public and private acts impacting on foreign inward investment – those reviews also being subject to review on appeal – an investor enjoys protection. A plethora of legislation that it would not be possible to list for reasons of length protects from expropriation of property and other summary and unjust acts towards investors.

National legislation protecting outgoing foreign investment

22. Does the country have an investment guarantee scheme or offer political risk insurance that protects local investors when investing abroad? If so, what are the qualifying criteria, substantive protections provided and the means by which an investor can invoke the protections?

Ireland

Relevant guarantee scheme

Qualifying criteria, substantive protections provided and practical considerations

Export insurance schemes such as in the 1990s have existed from time to time.

Export credit insurance existed to provide assistance to the beef industry. This in part led to the ‘Beef Inquiry’ conducted by Mr. Justice Liam Hamilton. The controversies arising from this scheme mean no such meaningful comparator exists now.

Awards

23. Please provide a list of any available arbitration awards or cases initiated involving this country’s investment treaties.

Ireland

Awards

None

Pending proceedings

None

Reading List

24. Please provide a list of any articles or books that discuss this country’s investment treaties.

Ireland

Discussed in part in Dowling-Hussey and Dunne, Arbitration Law , 2nd edition, (Round Hall, Dublin 2014)

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