It all started in 1999, when Romanian authorities granted an exploration license to the Roșia Montană Gold Cooperation (hereinafter RMGC) to build and operate the mine in Rosia Montana. Throughout the years, the project encountered extensive criticism from local residents and environmental associations, who organized protests against the project due to the use of cyanide, and the potential forced relocations of residents. The scandal reached its peak in 2013, with tens of thousands of Romanians organizing protests across the country to oppose the mine and the so called Roşia Montană law, which would have fast-tracked the project. The law was finally rejected by Senate.

Located in the Apuseni mountains of west central Romania, the Rosia Montana project would have been Europe’s largest open-pit gold mine operation. Instead, ”Save Roşia Montană!” arguably became the largest people’s movement that in Romania since the 1989 Revolution. For the past five years, the project’s majority owner, Canadian-British company, Gabriel Resources (hereinafter ”Gabriel”), has been fighting Romania before ICSID, claiming US$5.7 billion in compensation for lost profits — almost 3% of the entire Romanian economy. The amount is allegedly eight times higher than expenditures spent on the development of the project.

What is the case about and what exactly is Gabriel claiming?

Romanian citizens challenged before the national tribunals the existing permits granted by the Romanian authorities for the project. In every case, the Romanian courts ruled that the permits have been issued in violation of environmental laws or there was evidence of administrative abuses. Ultimately, the Romanian courts halted the project. Until this day, the mining company has still not obtained all the necessary permits, because it failed to comply with domestic and EU law.

Since 2015, Gabriel has been fighting Romania via investor-state dispute settlement before the ICSID. Gabriel argues that the failure of Romanian authorities to issue the remaining permits constitutes a breach of its obligations under the bilateral investment treaties with Canada ­­­[Canada – Romania BIT (2009)] and the UK  ­­­[Romania – United Kingdom BIT (1995)]. More specifically, Gabriel claims the inaction of Romania has subjected the investments to measures equivalent to expropriation. In addition, Romania allegedly failed to fulfil its obligations to grant fair and equitable treatment and full protection and security, or similar. Last, but not least, Gabriel argues that Romania failed to accord Gabriel treatment no less favourable than that Romania accords to its own investors. [breach of the national treatment obligation] [1]

In support of these claims, Gabriel pointed out to the Romanian government’s application to turn Roşia Montană into a UNESCO World Heritage Site, and the fact that it sought parliamentary approval for the mine.

What about the people?

Romanian organizations have submitted an amicus curiae brief to the arbitral tribunal expressing the disregard  of their rights. In particular, they raised concerns about their right to an adequate standard of living provided for in Article 11 of the International Covenant on Economic, Social and Cultural Rights.

This provision includes, inter alia, the right to live somewhere in security, peace, and dignity.  While the submission of the brief was accepted, the arbitral tribunal excluded the testimonies and legal arguments contained in it.

On one side, the tribunal considered that the testimonies­­ cannot form part of the evidence because have not been tested in cross-examination. Concerning the legal arguments, the tribunal held that amici failed to show expertise on legal matters or expertise that is not already available to Romania.

Sources:

Andra Ioana Curuțiu

Legal Intern R&R Partners Bucharest