5 February 2023

Mining Watch and Greenpeace, 4 billion dollar memorandum sent to Washington as final meeting of the parties’ in the Roșia Montana case is near

The Independent Centre for the Development of Environmental Resources, part of the Mining Watch network, and Greenpeace Romania submitted an Amicus Curiae memorandum on the Roșia Montană case to the ICSID Arbitral Tribunal. The environmental organisations communicated to the Tribunal the decision of the Ploiești Court of Appeal which cancelled the last archaeological discharge certificate for the mining project in the Cârnic Massif – Roșia Montană. This final court ruling could help Romania avoid having to pay up to $4.4 billion to Gabriel Resources (GBU. V).

The organisations’ memorandum comes after, in the evidence submitted so far to the Washington Tribunal, the Government of Romania took the same position as Gabriel Resources: both sides erroneously mentioned that the decision of the first instance was final. That decision upheld the archaeological discharge certificate and was thus favourable to Gabriel Resources. On appeal, however, the Ploiești Court of Appeal found that the certificate for the mining project was issued illegally, so construction work could not have been carried out in the area. This final decision, although it was taken in February, did not reach Washington, according to the case documents currently available on the ICSID website.

The arbitration case is almost at its end. On September 19 both parties are scheduled to meet in Washington for the last time before the award is issued, and we do not know if any party notified the Tribunal of the decision taken by the Ploiesti Court of Appeal,” said Stephanie Roth, representative of Mining Watch.

“Through this amicus curiae, we want to ensure that we have done everything possible. At stake are over 4 billion dollars, which we would not want Romanian citizens having to pay due to inactivity from the part of the Romanian state. We again ask the Government to correctly inform the Tribunal in Washington about the cancellation of the archaeological discharge certificate and to publicly explain the position it has taken so far: why it presented as final the decision that maintained the archaeological discharge certificate and why it is silent on the subject of the final decision of the Ploiești Court of Appeal” Stephanie Roth continued.

An Amicus Curiae is a way for citizens to intervene in an arbitration case when they are not direct parties. This memorandum is the second Amicus Curiae submitted by the Romanian environmental organisations to the Washington-based arbitral tribunal regarding Roșia Montană. The organisations’ first Amicus Curiae was admitted.

The full document submitted through the Amicus Curiae procedure to the ICSID Tribunal is available below, at the end of this release.

More information about the implications of cancelling the archaeological discharge certificate can be found at the miningwatch.ro website, via this link.

Some of the documents submitted by the parties part of the Roșia Montană arbitration case can be accessed here, on the official website of the ICSID Tribunal.


Read here the Washington court’s verdict regarding the memorandum.


Dear President Tercier,

The amici respectfully submit additional information to their amicus brief dated 2 November 2018. Amici’s interests in the matter as well as their expertise were comprehensively described in the initial petition. With Procedural Order No. 19 of 7 December 2018, the Tribunal accepted the petition and partially granted leave to intervene as amicus curiae; limiting the scope of amici’s contribution to factual matters. The present petition is on the same matter and the conditions for intervention have not changed. Amici believe that they continue to meet the conditions for amicus interventions laid down in Annex III, C of the Romania-Canada BIT and Article 37(2) of the ICSID Arbitration Rules.

We are mindful of the Tribunal’s decision in Procedural Order No. 19 and do not offer testimonies (not open for cross examination) or legal reasonings. In addition, conscious of the conditions of Article 37 (2) of the ICSID Arbitration Rules, amici do not want to delay the proceedings and therefore directly include the factual information they consider relevant for the Tribunal’s decision in this submission. However, should this Tribunal deem it necessary to first receive a petition to be granted leave to submit additional information, we will proceed accordingly.

On 30 September 2021 the Tribunal issued Procedural Order No. 35 concerning the admissibility of new evidence. In consequence the Claimants and Respondents submitted new evidence in October 2021 and December 2021 respectively. The evidence mainly relates to the UNESCO listing and the cultural and archaeological value of the Rosia Montana area. It is directly in relation to these issues that amici like to offer additional factual information.

As in the previous amicus submission, we differ from the Claimant and Respondent in that we are well established Romanian non-governmental organisations (NGOs). We intervened at various stages of the official procedures related to permitting the Rosia Montana mine development. These interventions formed a central part of our activities with subsequent litigation carried out either individually or alongside further NGOs from Romania.

State decisions challenged by NGOs are part of the essence and practice of the rule of law. Both amici have since long carried out litigation activities related to the permitting of the mine development as proposed by Gabriel Resources and the Romanian Government in a joint venture called RMGC. It is the reason of the rule of law to be able to contest state decisions in a court of law. It is regarding one such litigation activity and a resulting judgement by the Ploiesti Court of Appeal of 16 February 2022 that amici respectfully offer additional information to the Tribunal.

We would like to inform the Arbitral Tribunal that Archaeological Discharge Certificate No. 9/14.07.2011 was annulled via a final decision. Decision No 770 of 10 December 2020 issued by the Buzău County Court was appealed by NGOs, among one of the present amici. The appeal was judged by the Ploiesti Court of Appeal which issued Decision No. 187 on 16 February 2022 ordering the annulment of Archaeological Discharge Certificate No. 9/14.07.2011. RMGC was an intervening respondent in the appeal case and the Ministry for Culture’s Alba Directorate was the respondent.

In the new evidence submitted to the Tribunal by the Claimant and Respondent both parties mention the Buzău County Court decision but none of them refer to the appeal, already ongoing at that time. Instead, both parties claim that the Buzau Court decision No. 770 dated 10 December 2020 which upheld archaeological discharge certificate No. 9/14.07.2011 is final and irrevocable.

Annex

Decision No. 187 issued by the Ploiesti Court of Appeal on 16 February 2022 in its Romanian original (Annex_RO) and an authorised English translation (Annex_EN).

Respectfully submitted on 13 September 2022


Read here the petition addressed to ICSID, as well as the submitted amicus curiae brief:
Amicus Curiae
Petition for Non-Disputing Party Status

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