Gabriel Resources v. Romania

This Procedural Calendar has been amended twice by the Parties: First, by their respective letters of 7 and 13 of February 2018, and more recently, by their 11 April 2018 communications.

a) Alburnus Maior is a non-profit, not governmental organization based in Roşia Montană. It was incorporated as an association in Romania on 8 September 2000 and represents the interests of its members – inhabitants and property owners of the Roşia Montană, Corna and Bucium villages – who oppose the mining development as proposed by Gabriel Resources and RMGC. Petitioner has been involved in organizing demonstrations, lobbying, writing petitions, taking action in court, holding informational seminars for the local population, and the other mobilizations related to the Roşia Montană gold mining project. Alburnus Maior's principal objective is the environmental and cultural preservation of the Roşia Montană and Bucium regions, as well as preventing the forced relocation of the regions' inhabitants.

b) Greenpeace Romania is part of Green Peace Central and Eastern Europe (CEE). The organization has been active in the country since 2007. From the beginning of Greenpeace's presence in Romania, already via informal volunteer groups in the early 2000's, the organization has been closely involved in following the legal, political and on-site developments concerning the cyanide mining permit in Roşia Montană. Throughout the years, Greenpeace Romania was involved in thirteen legal litigations related to the gold mining project, contesting both the denial of the public's access to information in relation to the project, as well as several of the environmental permits given to the RMGC.

c) The Independent Center for the Development of Environmental Resources (ICDER) is a non-profit, non-governmental organization based in the town of Cluj-Napoca. It was incorporated as an association in Romania on 29 June 2006. It represents the interests of its members – citizens who believe in environmental justice to defend their constitutional right to a clean and ecologically-balanced environment. Since 2013, ICDER has been the hub and hosted the secretariat of the Mining Watch Romania network. Since its inception in 2006, ICDER intervened in support of its partner Alburnus Maior at various stages of the official procedures related to permitting/assessing the mining development as proposed by Gabriel Resources and the Romanian Government. These interventions formed a considerable part of its activities with subsequent strategic litigation activities carried out either on its own or alongside Alburnus Maior.

a) Alburnus Maior represents the interests of over 350 families who would have been displaced by the Project, and whose interests will continue to be affected by any decision of the Tribunal. It is also the foremost local organisation committed to protecting the natural resources of Roşia Montană and to maintaining its historical importance.

b) Greenpeace Romania has participated in licensing processes and works to protect the Romanian environment, including in Roşia Montană.

c) ICDER has worked alongside Alburnus Maior in its efforts to protect the people, environment, and cultural value of Roşia Montană.

a) it is biased, as the Applicants present the submission openly seeking to assist Respondent, State representatives have sought to assist in the preparation of the Submission and the Applicants are openly hostile to the system of investor-State dispute resolution (C-Comments, paras 5, 30-41);

b) it purports to address issues beyond any possible expertise or particular knowledge or perspective different from the Parties (C-Comments, paras 6, 42-49);

c) it addresses issues that are already thoroughly addressed by the Parties (C-Comments, 6, 50-62);

d) it has unreliable, misleading and outright false statements based on, inter alia, various “witness testimonies” prepared for purposes of the Submission that are not given under oath and are not subject to cross-examination and that are thus unreliable and incapable of assisting the Tribunal to arrive at a correct decision (C-Comments, paras 7, 8, 63-67).

- Assisting the Tribunal: That the prospective amicus “assist[s] the tribunal in the determination of a factual or legal issue related to the arbitration by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties” (Part III(4)(a), Annex C of the BIT; see also Rule 37(2)(a) of the ICSID Arbitration Rules);

- Addressing a matter within the scope of the dispute: That the Submission “would address a matter within the scope of the dispute” (Part III(4)(b), Annex C of the BIT; see also Rule 37(2)(b) of the ICSID Arbitration Rules);

- Significant interest in the arbitration: That the prospective amicus “has a significant interest in the arbitration” (Part III(4)(c), Annex C of the BIT; see also Rule 37(2)(b) of the ICSID Arbitration Rules);

- Public interest in the arbitration: That “there is a public interest in the subject-matter of the arbitration” (Part III(4)(d), Annex C of the BIT);

- The integrity of the proceedings: That the Submission “avoids disrupting the proceedings” (Part III(5)(a), Annex C of the BIT; see also Rule 37(2) of the ICSID Arbitration Rules); and that “neither disputing party is unduly burdened or unfairly prejudiced by such submissions” (Part III(5)(b), Annex C of the BIT; see also Rule 37(2)(a) of the ICSID Arbitration Rules).

- That the prospective amicus “is a person of a Contracting Party, or has a significant presence in the territory of a Contracting Party” (Part III(4), Annex C of the BIT); and

- That the Application satisfies certain formal requirements set out in Part IV(1) and (2), Annex C of the BIT (Part III(1), Annex C of the BIT).

- The Tribunal will not address Claimants' arguments that the Applicants seek to assist Respondent or that State Representatives have been involved in the preparation of the Submission. Whilst these are serious allegations, the Tribunal will assume the bona fides of the Applicants in making their Application.

- The Tribunal agrees with Claimants that the Applicants have failed to show that they have particular expertise on the legal matters that they wish to address or that, more generally, they would offer expertise that is not already available to Respondent on these issues.

- The Tribunal is, however, prepared to accept the possibility that the Applicants do have a particular knowledge of factual issues relevant to this dispute that may assist the Tribunal.

- Further, it considers that, if the Submission is admitted, the testimonies referred to or relied on therein or any such documents themselves as they appear to be publicly available cannot be considered or admitted to the present proceedings. This is because such testimonies cannot be considered or evaluated as “witness statements”, which would require, as Claimants correctly submit, their testing via the possibility for cross-examination. Therefore, if the Application is granted, they cannot form part of the evidence or facts of the arbitration.

- It is recalled that in the present case, Claimants are not requesting the implementation of the Project but damages for the alleged interference with their investment.

- The Applicants are correct that the fact that the outcome of the present arbitration will not decide on whether the Project will be implemented or not is not relevant when there is a possibility that such outcome will impact upon wider interests.

- Having said that, the Tribunal with reference to its considerations in paragraphs 60 to 62 above is of the opinion that the specific Applicants have not proven a “more than ‘a general' interest in the proceeding” (see Apotex v. USA (III) (ICSID Case No. ARB(AF)/12/1, Procedural Order on the Participation of the Applicant, Mr. Barry Appleton, as Non-Disputing Party, para. 38)), let alone a significant interest in representing or protecting those they claim to be representing. The Tribunal's opinion is especially reinforced by the Applicants' own statement that “unconscionable investor behaviour should be reprimanded instead of being protected, and the Tribunal's decision is not only important for the particular case at hand but also as a signal for future investors attempting to abuse the protection offered by BITs”.

- It is again recalled that in the present case, Claimants are not requesting the implementation of the Project but damages for the alleged interference with their investment.

- Similar to its considerations above (see above para. 63), the fact that the outcome of the present arbitration will not impact upon whether the Project will be implemented or not is not entirely relevant to the assessment of a possible public interest in the case.

- At the same time, the Tribunal agrees with Claimants' reference to the Apotex v. USA case which stated that “the subject-matter of an arbitration is to be considered of public interest whether the decisions to be issued in that arbitration are likely to affect individuals or entities beyond the Disputing Parties” (ICSID Case No. ARB(AF)/12/1, Procedural Order on the Participation of the Applicant, Mr. Barry Appleton, as Non-Disputing Party, para. 42). Accordingly, the Tribunal must ask itself whether it is possible that its decision will affect inter alia the individuals or entities mentioned in the Application.

- In the present case, the existence of “a public interest” is certainly not disputed. The nature of the disputed Project, as well as the oppositions to it as far as they concern the people, the environment, the culture and the history, necessarily implicate a “public interest” and the outcome of these proceedings may impact upon it.

- The Tribunal therefore finds that there is a public interest in the subject-matter of the arbitration.

- The Tribunal clarifies that this public interest does not arise simply because an award of damages against the Respondent would be paid from the Romanian Government's reserves (as was suggested by the Applications). If this were the case then there would be a sufficient public interest for the admissibility of amici briefs in all investor state arbitrations. That is not, therefore, an acceptable criterion.

- Section I (Introduction), Section II (The claimant failed to comply with investor responsibilities under both international investment and international human rights law) and Section III (The company failed to comply with domestic and EU Laws) are admitted, but only to the extent that they refer to factual issues within the specific knowledge of the Applicants and in relation to the interests the Applicants claim should be protected. Arguments on the law, as well as references to or reliances on testimonies are excluded.

- Section IV (Legal implications of the Amici's perspective for the present arbitration) of the Application is not admitted.

“7. A tribunal that grants leave to file a non-disputing party submission is not required to address the submission at any point in the arbitration, nor is the non-disputing party that files the submission entitled to make further submissions in the arbitration.

8. Access to hearings and documents by non-disputing parties that file applications under these procedures will be governed by the provisions of Part I of this Annex (Public Access to Hearings and Documents).”

“In accordance with Section I.1 of Annex C of the [Canada-Romania BIT], the hearings shall be open to the public.

20.6.1. The hearing shall be broadcast on closed-circuit television at facilities made available by the ICSID Secretariat for such purposes.

20.6.2. To ensure the protection of confidential information, the Tribunal may hold portions of hearings in camera and establish such other procedures for the protection of confidential infromaiton as may be appropriate.”

1. The Application is granted and the Submission is admitted with the following limitations:

(a) The Applicants shall rectify immediately the formal defects identified in paragraph 58 above in their Application and Submission within 10 days of this Procedural Order. A failure to do so will result in the non-admittance of the Submission.

(b) Section I (Introduction), Section II (The claimant failed to comply with investor responsibilities under both international investment and international human rights law) and Section III (The company failed to comply with domestic and EU Laws) are admitted, but only to the extent that they refer to factual issues within the specific knowledge of the Applicants and in relation to the interests the Applicants claim should be protected. Arguments on the law, as well as references to or reliances on testimonies are excluded.

(c) Section IV (Legal implications of the Amici's perspective for the present arbitration) of the Application is not admitted.

2. The non-disputing parties shall not participate in the Hearing. They may however observe the Hearing through the broadcasting facilities to be arranged at the ICSID, subject to appropriate measures taken by the Tribunal pursuant to Section 20.6.2 of PO 1.