The Romanian defenders in Rosia Montana case: “The foreign investor lacked the community’s approval”

By Romania Journal Last updated Mar 11, 2024

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Crenguța Leaua, the lawyer who led the team of lawyers that represented Romania in the trial with Gabriel Resource at the arbitration court in Washington, told Digi24, Sunday evening, that the team formulated the argument that the investor from Roșia Montană did not have “ social license”, meaning support and acceptance from Romanian society and the community.
The lawyer also said, however, that if the company will appeal the annulment, it will be a difficult and complex procedure, but that the team she leads has won such lawsuits on behalf of Romania.

“There were many lawyers from the Romanian team, but also from the Swiss team, who worked together for nine years, side by side, each of them coordinated his piece of work and each had an essential role. Unfortunately, the decision being confidential at the moment, we cannot present the reasoning until it is presented by the tribunal, but I can present the essence of the idea that led the tribunal to admit Romania’s position and reject the one formulated by the foreign investor – it is that Romania does not violated the provisions of the mutual investment protection treaty and respected the rights of the investor and, equally, gave due weight to the domestic legislation and procedures that must be respected, both by foreign and Romanian investors, this being the essence of the decision,” Crenguta Leaua said.

“There was a weight in the defense that we formulated, in the company’s position, it is what is called in international law the social license, i.e. it is not enough to have a document signed with the state in which there is a license contract to say, but it is necessary to obtain the acceptance of the human community in which you integrate with your investment. And this social acceptance, we argued, was not achieved. We have been transparent, our defense has been published except for certain confidentiality items that the arbitral tribunal decided in terms of criteria on the arbitral tribunal website,” she added.

Asked if there could be surprises after the appeal, the lawyer said that there is a risk. “I can say that, legally, there is the possibility of formulating an appeal in any of the files governed by the procedure in which we found ourselves, so there is this possibility – that the investor will follow it or not remains to be seen, its reasons are very limiting and we will find this out in the coming months. A risk must be legally accepted in absolutely any situation where these remedies exist.

Now, we consider that the decision is one that demonstrates that the tribunal understood Romania’s position very well. But it is a 2-1 decision, in which two arbitrators were the majority who decided, and one arbitrator had an opinion that was not in favor of the Romanian state, and then we must have this lucidity in analyzing the situation and realizing that there are some next steps that must be treated with great responsibility and attention”.

Also, questioned how long can take till a final ruling is pronounced, Leaua replied it can last up to two years.

“We, the same team, also won an annulment action for the Romanian state, in the sense that the investor’s annulment request was rejected. We have been through this experience, we know that it is a difficult and complex procedure, but we also know that it can be won. How will it be in this situation if we have clarity on the arguments of the plaintiffs, when the case will be I will be able to give you details, for now it is impossible,” she argued.

As for the Romanian authorities’ prejudgement in this case, the lawyer stated:

“We, the same team, also won an annulment action for the Romanian state, in the sense that the investor’s annulment request was rejected. We have been through this experience, we know that it is a difficult and complex procedure, but we also know that it can be won. How will it be in this situation if we have clarity on the arguments of the plaintiffs, when the case will be I will be able to give you details, for now it is impossible.

So responsibly, a risk analysis could also include the analysis of a loss. We are very happy that we managed to convince this tribunal that had the necessary inclination to look at the arguments brought by Romania and understand them in depth,” Crenguta Leaua concluded.

In 2013, tens of thousands of people took to the streets and protested for three weeks against the exploitation of gold in Roșia Montană, which would have destroyed the area, as the mining would have been processed through cyanide.

In several cities in the country, including Bucharest, but also abroad, protest actions were organized against the legislative project adopted by the Ponta Government, which was then sent to the Parliament with a view to the exploitation of gold in Roșia Montana.

In June 2017, the Canadian company, the majority shareholder Roșia Montană Gold Corporation, summoned Romania to court at a World Bank Tribunal, where it claimed losses of billions of dollars because the Government in Bucharest decided not to approve the exploitation of the gold mine Rosia Montana.

The UNESCO Cultural Heritage Committee decided, in July 2021, to register the Roșia Montană site in the Intangible Cultural Heritage of Humanity and in the World Heritage in Danger, which means stopping any mining project.

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