Abstract
There is a general wisdom that investment law and investor-state arbitration contribute to the development of rule of law by enhancing features such as accountability, clarity, transparency, and predictability, despite evidence to the contrary. Such wisdom stems from the neoliberal political, economic, and legal discourse surrounding free trade and free markets, which were supported and imposed by international institutions on developing countries. In many cases the neoliberal discourse is employed solely to justify economic plunder and the establishment of a predatory type of capitalism (The most accurate description of predatory capitalism has been provided by Noam Chomsky: “Predatory capitalism […] is incapable of meeting human needs that can be expressed only in collective terms, and its concept of competitive man who seeks only to maximize wealth and power, who subjects himself to market relationships, to exploitation and external authority, is antihuman and intolerable in the deepest sense.” See: Chomsky N (2005) Chomsky on anarchism. AK Press, Oakland, p 114.). Gabriel Resources v Romania is one of the best examples.
Starting from the ICSID claim of Gabriel Resources, this chapter adds to the ongoing debate, addressing how the neoliberal rhetoric is employed before arbitral tribunals in regard to specific FDI projects. Based on the facts of the case arising from publicly available documents, it debunks the myth of the positive impact of investment agreements on societal developments and proves how the system set up by BITs and trade conventions is being abused by unscrupulous “investors” to the detriment of host states and local population.
The free trade regime of the past several decades is clearly at a tipping point and countries like Romania must weigh their sovereignty against their appetites for foreign investors, some of whom have little sympathy for domestic measures advancing environmental protection, sustainable development and public health, let alone the will of the people.
Adam Cernea Clark (http://www.huffingtonpost.com/adam-cernea-clark/whose-sovereignty-gabriel_b_7939596.html)
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Notes
- 1.
Damşa L (2017) The transformation of property regimes and transitional justice in Central Eastern Europe: in search of a theory. Springer International Publishing, p 84
- 2.
Trubek DM, Santos A (2006) The new law and economic development: a critical appraisal. Cambridge University Press, p 85
- 3.
Damşa L (2017) The transformation of property regimes and transitional justice in Central Eastern Europe: in search of a theory. Springer International Publishing, p 84
- 4.
Trubek DM, Santos A (2006) The new law and economic development: a critical appraisal. Cambridge University Press, pp 19–73, 66–67
- 5.
De Schutter et al. (2013) Foreign direct investment and human development: the law and economics of international investment agreements. Routledge, p 1
- 6.
Trubek DM, Santos A (2006) The new law and economic development: a critical appraisal. Cambridge University Press, pp 85–86. As the author pointed out, this was the case in former communist countries, such as Romania, with former command economies, where the whole institutional structure of market economy had to be built from scratch.
- 7.
Robison R (2006) The neoliberal revolution: forging the market state. Palgrave Macmillan, p 8
- 8.
Trubek DM, Santos A (2006) The new law and economic development: a critical appraisal. Cambridge University Press, p 94
- 9.
The claim of neocolonialism is addressed at length in an empirical study conducted in 2014. The authors found that up to mid-90s the claim appears to be supported by evidence. Schultz T, Dupont C (2014) Investment arbitration: promoting the rule of law or over-empowering investors? A quantitative empirical study. Eur J Int Law 25:6–18
- 10.
Mattei U (2008) Plunder, when the rule of law is illegal. Blackwell, Malden, pp 10–35
- 11.
De Schutter et al (2013) Foreign direct investment and human development: the law and economics of international investment agreements. Routledge, pp 1–2
- 12.
Robison R (2006) The neoliberal revolution: forging the market state. Palgrave Macmillan, p 18
- 13.
De Schutter et al (2013) Foreign direct investment and human development: the law and economics of international investment agreements. Routledge, p 11 and fn 30
- 14.
Id. at pp. 8, 84–85
- 15.
Gabriel Resources v Romania, ICSID Case No ARB/15/_, Request for Arbitration, Para 23, available online at: http://icsidfiles.worldbank.org/icsid/ICSIDBLOBS/OnlineAwards/C4706/DC10119_En.pdf
- 16.
- 17.
According to data collected in 2017, Romania’s GDP was 187 billion dollars. http://business-review.eu/news/romanias-gdp-rose-7-pct-in-2017-to-eur-187-billion-outpacing-greece-for-the-first-time-in-decades-official-data-confirm-160405
- 18.
Brabazon H (2016) Neoliberal legality: understanding the role of law in the neoliberal project. Taylor & Francis, p 1
- 19.
On the rhetoric of transition of the CEE countries, from the former transition from socialism to communism to the current transition from communism to capitalism Mattei U (2008) Plunder, when the rule of law is illegal. Blackwell, Malden, p 47. On the types of capitalism that developed in CEE region Bohle D, Greskovits B (2012) Capitalist diversity on Europe’s periphery. Cornell University Press, pp 22–24. The authors identify three categories: neoliberal regime (Estonia, Latvia, Lithuania, and later on Romania and Bulgaria), the embedded neoliberalism (Visegrad states – Czech Republic, Slovakia, Poland, and Hungary), and marketization (Slovenia).
- 20.
Brabazon H (2016) Neoliberal legality: understanding the role of law in the neoliberal project. Taylor & Francis, p 16
- 21.
Id. at p. 31, Weiler T, Baetens F (2011) New directions in international economic law: in memoriam Thomas Wälde. BRILL, Dordrecht, pp 310–311 and Olaya J (2010) Good governance and international investment law: the challenges of lack of transparency and corruption. In: Society of International Economic Law (SIEL), second biennial global conference, University of Barcelona, July 8–10, 2010, 30.07.2018, p 2. The latter author includes the rule of law among the four attributes of “good governance,” together with transparency, accountability, and legitimacy.
- 22.
Mattei U (2008) Plunder, when the rule of law is illegal. Blackwell, Malden, p 44
- 23.
Trubek DM, Santos A (2006) The new law and economic development: a critical appraisal. Cambridge University Press, p 86
- 24.
Brabazon H (2016) Neoliberal legality: understanding the role of law in the neoliberal project. Taylor & Francis, pp 36–37, 43. Perrone nominates “bilateralization of relations and microeconomic rationality” as the two core disciplines of neoliberal governmentality. Also: Mattei U (2008) Plunder, when the rule of law is illegal. Blackwell, Malden, pp 14–15, 19 and De Schutter et al (2013) Foreign direct investment and human development: the law and economics of international investment agreements. Routledge, p 3.
- 25.
Brabazon H (2016) Neoliberal legality: understanding the role of law in the neoliberal project. Taylor & Francis, p 47
- 26.
Weiler T, Baetens F (2011) New directions in international economic law: in memoriam Thomas Wälde. BRILL, Dordrecht, p 312; Mattei U (2008) Plunder, when the rule of law is illegal. Blackwell, Malden, p 18
- 27.
David Abraham’s comment in Garro AM (2011) Trade and investment treaties, the rule of law and standards of the administration of justice. (The human element: the impact of regional trade agreements on the human rights and the rule of law). Univ Miami Inter-Am Law Rev 42:294–295
- 28.
De Schutter et al (2013) Foreign direct investment and human development: the law and economics of international investment agreements. Routledge, p 12. “Such agreements [concluded between the individual investor and the host government] are often called host government agreements (HGAs): they are internationalized contracts, rather than international treaties.”
- 29.
Moran TH, Institute for International Economics (1998) Foreign direct investment and development: the new policy agenda for developing countries and economies in transition. Institute for International Economics, p 20.
- 30.
Brabazon H (2016) Neoliberal legality: understanding the role of law in the neoliberal project. Taylor & Francis, pp 48, 52
- 31.
As one of the advocates of neoliberalist ideas put it, ISA puts a “straitjacket on […] the potential for regulatory excess triggered by domestic agitation.” In other words, ISA’s role is to curve the regulatory action of the state, taken due to public request. Weiler T, Baetens F (2011) New directions in international economic law: in memoriam Thomas Wälde. BRILL, Dordrecht, pp 312–313 and fn. 20 citing Thomas Walde.
- 32.
Brabazon H (2016) Neoliberal legality: understanding the role of law in the neoliberal project. Taylor & Francis, p 55. See Chaisse J, Ruby N (2018) The doctrine of legitimate expectations- comparing international law and common law in Hong Kong. Hong Kong Law J 48(1):79–104
- 33.
Schultz T, Dupont C (2014) Investment arbitration: promoting the rule of law or over-empowering investors? A quantitative empirical study. Eur J Int Law:18–20
- 34.
Mattei U (2008) Plunder, when the rule of law is illegal. Blackwell, Malden, p 16
- 35.
It has been argued that “when the conditions are right, […] FDI can be an important engine for growth and human development.” De Schutter et al (2013) Foreign direct investment and human development: the law and economics of international investment agreements. Routledge, p 8. While this statement is correct in trying to avoid generalization of negative aspects reflected by actions of rapacious investors in countries with lax regulations, the issue of “how” to establish the right conditions is difficult to set in practice.
- 36.
David Abraham’s Comment in Garro AM (2011) Trade and investment treaties, the rule of law and standards of the administration of justice. (The human element: the impact of regional trade agreements on the human rights and the rule of law). Univ Miami Inter-Am Law Rev:294–295. “The ‘rule of law’ is surely a good thing but combine free-market free trade with legal enforcement, and the results may be very mixed as far as democracy and justice are concerned.”
- 37.
Bandelj N, Bandelj APSN (2008) From communists to foreign capitalists: the social foundations of foreign direct investment in postsocialist Europe. Princeton University Press, p 66
- 38.
There is also a cultural aspect to institutionalization of FDI. Id. at 70 and 76–77
- 39.
Id. at 68. see also Chaisse J, Bellak C (2015) Navigating the expanding universe of investment treaties- creation and use of critical index. J Int Econ Law 18(1):79–115
- 40.
Id. at 68–70
- 41.
Id. at 80
- 42.
Authors have identified also a form of mimetic behavior of Central and Eastern European countries, which appeared to replicate the behavior of their peer states in the region. Id. at pp. 80–81. Advocates of neoliberalism also admit the fact that ISA was an external imposition on states: “It was a ‘discipline’ because it forced governments to change their conduct, particularly toward foreign investors in a way which was more in line with the modern and perhaps Western capitalist, notions of good governance.” Weiler T, Baetens F (2011) New directions in international economic law: in memoriam Thomas Wälde. BRILL, Dordrecht, p 320 and fn 5.
- 43.
Bohle D, Greskovits B (2012) Capitalist diversity on Europe’s periphery. Cornell University Press, p 22
- 44.
Id. at 201, 206–207
- 45.
Moran TH, Institute for International Economics (1998) Foreign direct investment and development: the new policy agenda for developing countries and economies in transition. Institute for International Economics, p 21
- 46.
Id. at p. 21
- 47.
Bohle D, Greskovits B (2012) Capitalist diversity on Europe’s periphery. Cornell University Press, pp 209–210. One should notice here that one of the companies belonging to Gabriel Resources is registered in Jersey, one of the British tax heavens.
- 48.
Robison R (2006) The neoliberal revolution: forging the market state. Palgrave Macmillan, pp 7–8. While the author specifically refers to Russia, the phenomenon occurred in other CEE countries, Romania being one of them.
- 49.
Bohle D, Greskovits B (2012) Capitalist diversity on Europe’s periphery. Cornell University Press, p 183
- 50.
De Schutter et al (2013) Foreign direct investment and human development: the law and economics of international investment agreements. Routledge, p 23. “The FDI inflows are generally dependent on other variables, especially the size of the market in the host country and trade openness.”
- 51.
For some of the neoliberals, the ideal market state guarantees individual property rights and contracts but does not need to be democratic. Robison R (2006) The neoliberal revolution: forging the market state. Palgrave Macmillan, p 3 (fn 2)
- 52.
One of the best analyses thereof is available at Bohle D, Greskovits B (2007) Neoliberalism, embedded neoliberalism and neocorporatism: towards transnational capitalism in Central-Eastern Europe. West Eur Polit: Routledge 30
- 53.
Robison R (2006) The neoliberal revolution: forging the market state. Palgrave Macmillan, p 9
- 54.
China is the largest destination of FDI and the third largest trading nation, despite the fact that it still maintains significant FDI restrictions. See: Sweeney M (2010) Foreign direct investment in India and China: the creation of a balanced regime in a globalized economy. Cornell Int Law J 43:209–210 (and fn 11).
- 55.
The ICSID Convention was ratified by Decree no 62/1975, published in the Official Bulletin of Romania no 56/07.06.1975.
- 56.
The New York Convention was ratified by Decree no 186/1961 published in the Official Bulletin no 19/24.07.1961.
- 57.
Romania has been one of the first communist countries to resort to joint ventures with Western companies, such as the partnership with Renault or Citroen in the late 1960s and 1970s. See: Richman BM (1976) Multinational corporations and the communist nations. Manag Int Rev 16:9, 15–16 and Gatejel L (2017) A socialist–capitalist joint venture: Citroën in Romania during the 1980s. J Transp Hist 38:71, 75–80. However, by the end of the 1980s, their impact and contribution to Romanian economy was almost nonexistent.
- 58.
Bandelj N, Bandelj APSN (2008) From communists to foreign capitalists: the social foundations of foreign direct investment in postsocialist Europe. Princeton University Press, p 88
- 59.
Figure 3.1. Trends in FDI Inflows in Individual Postsocialist Countries 1990–2000, Romania, at id. at p 90
- 60.
Bohle D, Greskovits B (2012) Capitalist diversity on Europe’s periphery. Cornell University Press, p 198
- 61.
The expression belongs to Ion Iliescu, president of Romania between 1990–1996 and 2000–2004. On the 1992–1996 period of quietness and stagnation see https://adevarul.ro/news/eveniment/1992-1996-epoca-linistii-stagnarii-iliescu-vacaroiu-1_50bd3eb47c42d5a663c8fa2b/index.html, available in Romanian only.
- 62.
Supra fn 57
- 63.
On China’s investment regime see: Sweeney M (2010) Foreign direct investment in India and China: the creation of a balanced regime in a globalized economy. Cornell Int Law J:219–224
- 64.
Franck SD (2006) Foreign direct investment, investment treaty arbitration and the rule of law. McGeorge Glob Bus Dev Law J 19:337, pp 357, 359. Also: David Abraham’s Comment in Garro AM (2011) Trade and investment treaties, the rule of law and standards of the administration of justice. (The human element: the impact of regional trade agreements on the human rights and the rule of law). Univ Miami Inter-Am Law Rev, p 293
- 65.
The Romania-UK BIT is available online at: http://investmentpolicyhub.unctad.org/Download/TreatyFile/2218
- 66.
The Romania-Canada BIT is available online at: http://investmentpolicyhub.unctad.org/Download/TreatyFile/3503. The BIT was replaced by CETA.
- 67.
Art 11 – Scope of Application of Romania-UK BIT. Also Art 1 – Definitions, letter a) which defines “investment” as “every kind of asset admitted in accordance with the laws and regulations in force in the territory of the Contracting Party […].”
- 68.
Art 1 – Definitions, letter g) of Romania-Canada BIT
- 69.
Art 2, Para 5 – Establishment, Acquisition and Protection of Investment of Romania-Canada BIT
- 70.
Art 17, Para 2 – Application and General Exceptions of Romania-Canada BIT. See Chaisse J (2013) Exploring the confines of international investment and domestic health protections- general exceptions clause as a forced perspective. Am J Law Med 39(2/3):332–361
- 71.
For example, in Gabriel’s Request for Arbitration, the Claimant acknowledges that it failed to obtain an Environmental Permit (Para 31), which would have enabled it to perform the activities under the Concession Agreement. In such case, one can legitimately ask if, by failing to secure the permit the Claimant’s subsequent actions performed in its absence can be deemed “valid” and thus worthy of protection under the treaties. For details infra Neoliberal Discourse in Gabriel’s Request for Arbitration and Valid Investment or Unlawful Appropriation?
- 72.
The population and environmental NGOs in Romania opposed the project for its extremely negative impact on the environment, the local habitat and the cultural heritage in Roșia Montană. However, in its Request for Arbitration, the Claimant states that the use of “cyanide-based technology” is commonly used in gold mining industry around the world, which, although could be true, is hardly an evidence of consideration for the environment, to bring it into the ambit of the BITs.
- 73.
Mattei U (2008) Plunder, when the rule of law is illegal. Blackwell, Malden, p 6
- 74.
Request for Arbitration at Para 5
- 75.
Request for Arbitration at Para 25
- 76.
Id at Para 27–36
- 77.
Infra Economic Development or Speculation?
- 78.
Id at Para 34
- 79.
Id at Para 35
- 80.
It at Para 35
- 81.
A reference to “state-of-the-art technologies” and a “state-of-the-art mine” appears also in the Press Release of July 21, 2015 (2015 Press Release), pp 1, 2, available at: https://www.italaw.com/sites/default/files/case-documents/italaw7870.pdf. The overuse of similar expressions in various documents supports the idea that the Claimant is concerned with hitting specific keywords that would justify its rhetoric.
- 82.
Gabriel Resources v Romania, ICSID Case No ARB/15/_, Request for Arbitration, Para 5 and 24
- 83.
Id at Para 5 and 25
- 84.
Id at Para 22, Press Release, p. 2
- 85.
Id at Para 22
- 86.
Id at Para 22
- 87.
Id at Para 22
- 88.
Id at Para 24
- 89.
For details infra Sustainability and the Environmental Dimension
- 90.
Id at Paras 38–39. See Chaisse J (2012) Promises and pitfalls of the European Union Policy on Foreign Investment – how will the new EU competence on FDI affect the emerging global regime. J Int Econ Law 15(1):51–84
- 91.
Robison R (2006) The neoliberal revolution: forging the market state. Palgrave Macmillan, p 5
- 92.
Request for Arbitration at Para 29
- 93.
Id at Para 30
- 94.
Id at Para 31
- 95.
Id at Para 33
- 96.
Id at Para 34
- 97.
Id at Para 35
- 98.
Id at Para 35
- 99.
This theme appears also in the Claimant’s Second Request for Provisional Measures and Request for Emergency Temporary Provisional Measures, 28 July 2016, Para 6 (2nd Request for Provisional Measures), available at: https://www.italaw.com/sites/default/files/case-documents/italaw8981.pdf. In this case, the Claimant complains that two investigations concerning fraud and tax evasion that may have been committed by the Claimant have only a “retaliatory” scope. In other words, the state’s action have no legitimacy when investigating the actions of investors and thus no document that may arise from the investigations and could be detrimental to the investor should be allowed as evidence in the arbitration proceeding (Para 7).
- 100.
Art 7, Para (3) of Romania-UK BIT reads as follows: “Nothing in this Article (regarding ISA) shall prevent a national or company of one Contracting Party from referring a dispute concerning an investment to domestic courts of the other Contracting Party, where it has the right to do so under the domestic law of that other Contracting Party”. In other words, availability of ISA was neither conditioned, nor precluded by domestic proceedings.
- 101.
Art 13, Para 2, final provision of Romania-Canada BIT reads as follows: “It is agreed, subject to the provisions of this Article, that the Contracting Parties encourage investors to make use of domestic courts and tribunals for the resolution of disputes.” While the text seems to suggest that domestic litigation should be the rule, or at least exhausted before turning to ISA, the wording of Para 3, letter b) indicates that it is in fact s a mere right of choice granted to the investor.
- 102.
Request for Arbitration at Para 46
- 103.
Trubek DM, Santos A (2006) The new law and economic development: a critical appraisal. Cambridge University Press, p 144
- 104.
In the 2nd Request for Provisional Measures, Para 7, the Claimant requests the tribunal not only to reject any evidence arising from investigations concerning criminal behavior of the investor, but also to treat any such investigations as oppressive and aggressive, all for the sake of safeguarding the ISA procedure (Paras 42–56). The request is restated in Claimant’s Reply to Respondent’s Observations on Claimant’s 2nd Request for Provisional Measures, August 24, 2016, Paras 3, 5, 13, 20, 27–44, available at: https://www.italaw.com/sites/default/files/case-documents/italaw8980.pdf. The request was rejected via the Reasoned Decision on Claimant’s Request for Emergency Temporary Provisional Measures of October 21, 2016, available at: https://www.italaw.com/sites/default/files/case-documents/italaw8989.pdf
- 105.
Request for Arbitration at Para 35
- 106.
Infra Sustainability and the Environmental Dimension
- 107.
Request for Arbitration at Para 2
- 108.
Idem. at Paras 1–5
- 109.
Idem. at Para 62. Although the Claimant states that confidentiality was “state imposed,” the details of the deal reveal that the investor was also happy to maintain the secrecy
- 110.
The issue of confidentiality is raised also in the Claimant’s Request for Provisional Measures of June 16, 2016 (1st Request for Provisional Measures), Paras 37–43 and 62, available at: https://www.italaw.com/sites/default/files/case-documents/italaw8541.pdf. Here, however, the Claimant complains that due to the lack of access to confidential documents, its counsel is unable to prepare and present their case. In other words, confidentiality affects the Claimants right to due process. At the same time, the Claimant appears to be unsatisfied with the fact that several confidential documents that were leaked to the public have not been removed by state’s authorities (Para 59)
- 111.
For a detailed chronological account of the Roșia Montană saga, see: Beyerle S, Olteanu T (2016) How Romanian people power took on mining and corruption, Foreign Policy, November 17, 2016, available online at: https://foreignpolicy.com/2016/11/17/how-romanian-people-power-took-on-mining-and-corruption-rosia-montana/. For further recent developments regarding the site see: Douglas Main – In Transylvania, A Fierce Battle Over Gold And Roman History, National Geographic, July 12, 2018, available online at: https://www.nationalgeographic.com/environment/2018/07/romania-gold-mining-fight-rosia-montana-unesco/
- 112.
Art 17 of the License
- 113.
NAMR Address no 254/1997 to the Ministry of Industries and Commerce, available in Romanian only at: https://www.documentcloud.org/documents/782246-rosia-montana-acte-premergatoare.html#document/p1
- 114.
Idem
- 115.
Idem
- 116.
- 117.
- 118.
Art 3 point 7 corroborated with Art 16 of Mining Law 61/1998. Art 16 clearly states that “The right obtained by giving into administration or by concession is different from the ownership right over lands and cannot be encumbered by the title holder in any way.” The sole exception was the transfer of the license, which could take place solely with the prior approval of the supervising authority (NAMR), according to Art 14 of the Mining Law. For details regarding the Romanian Mining Law, infra, fn. 131.
- 119.
For details Damşa L (2017) The transformation of property regimes and transitional justice in Central Eastern Europe: in search of a theory. Springer International Publishing, pp 124, (fn 126), 127
- 120.
This process occurred in Russia as well according to Robison R (2006) The neoliberal revolution: forging the market state. Palgrave Macmillan, p 59. “Public property, ‘socialist property,’ was taken under control and seized by individuals and groups of individuals who treated these assets in some respects as private property, without having a legal title to it.”
- 121.
Art 40, Para 1, letters e), f), or g) of Mining Law no 61/1998 (abrogated) and Art 55, Para 1, letters e), f), and g) of Mining law 85/2003 (in force).
- 122.
Infra Conflict of Interests and Corruption
- 123.
Art 4.1.1 of the License available online, in Romanian only, at: https://www.documentcloud.org/documents/782220-licenta-rosia-montana.html#document/p1
- 124.
The transfer of the License was approved by NAMR Order 310/09.10.2000.
- 125.
Idem
- 126.
https://www.documentcloud.org/documents/782216-anexe-perimetru-rosia.html#document/p6, available in Romanian only
- 127.
Art 4.3.1. c) and Art 4.3.4 of the License
- 128.
The Mining law no 61/1998, published in the Official Gazette of Romania, Part I, no 113/1998, was abrogated and replaced by Mining law no 85/2003, published in the Official Gazette of Romania, Part I, no 197/2003. Mining law no 61/1998, Arts 23–25 enabled NAMR to terminate the license for specific reasons regarding the title holder’s activity, non-compliance or legal status
- 129.
The percentage increased to 4% once the new Mining Law 85/2003 was adopted
- 130.
Art 10.1.2 of the License. Additional income was to be generated by taxation, which does not, however, justify the level of the royalty, especially since the investor was granted significant tax deductions. Art 12 and 13 of the License
- 131.
Infra Conflict of Interests and Corruption. Also NAMR’s Note no 2060/1997 to the Minister of Industries and Commerce, endorsing the partnership with Gabriel Resources as being “a foreign investor that, by capital injection and transfer of know-how and equipment, can contribute decisively and substantially, in transforming the activities in Roșia Montană … in profitable actions”. With 2% royalty, the activities would have been very profitable for the investors, but not for the state. Available in Romanian only at: https://www.documentcloud.org/documents/782246-rosia-montana-acte-premergatoare.html#document/p1
- 132.
For details infra, Conflict of Interests and Corruption
- 133.
- 134.
For details infra, The Dedicated Law
- 135.
- 136.
- 137.
- 138.
For details infra The Dedicated Law
- 139.
- 140.
Idem. The minimum annual amount for such “trainings” was 5000 US Dollars, and the company retained a last word on the beneficiaries of sponsorship.
- 141.
Idem
- 142.
For instance, the 2009 Loan agreement between Gabriel Resources (Jersey) LTD and MINVEST (the Loan Agreement), available online, in Romanian only, at https://www.documentcloud.org/documents/782217-contract-imprumut-gabrielresources-minvest.html#document/p1
- 143.
Art 1.2 of the Loan Agreement. According to Art 1.5, of the Draft Loan Agreement the alternative to returning the loan was to pass the valid title over land detained by MINVEST in connection with the mining Project to Gabriel Resources. At the same time, the loan bore accruing interest that was to be capitalized yearly (the draft agreement, in Romanian only, at: https://www.documentcloud.org/documents/782219-draft-acord-confidential-imprumut-minvest.html#document/p1). Although the Loan Agreement cited here did not maintain these provisions, there is no way of knowing if previous loans did not actually contain such provisions
- 144.
Concerning the money laundering investigation regarding RMGC https://www.riseproject.ro/articol/corporatia-rmgc-cercetata-penal-intr-un-dosar-amplu-de-spalare-de-bani/, last visited 11.07.2017, https://www.riseproject.ro/articol/4242-2/, http://www.hotnews.ro/stiri-17004712-culisele-tranzactiei-penale-cazul-rosia-montana.htm, and http://www.hotnews.ro/stiri-16970482-sechestru-conturile-rmgc-afacerea-firmelor-fantoma.htm
- 145.
- 146.
Art 5.2.1 of the License
- 147.
Art 5.3.1 of the License
- 148.
Although extremely harmful to humans and the environment, “cyanide is used in the majority of gold processing operations simply because it is cheap and effective.” See: https://www.mining-technology.com/features/featureshould-cyanide-still-be-used-in-modern-day-mining-4809245/
- 149.
Roșia Montană was subsequently declared a historical site, which translated into RMGC’s need to obtain an additional permit from the Ministry of Culture. http://www.mining.com/fresh-setback-for-gabriel-resources-in-romania-rosia-montana-named-historic-site/
- 150.
- 151.
Art 8.2.2 of the License
- 152.
Art 8.2.9 of the License
- 153.
Art 16 of the License
- 154.
http://revistapresei.hotnews.ro/stiri-subiectele_zilei-15546501-presa-internationala-despre-proiectul-rosia-montana-dupa-mii-oameni-protestat-parlamentul-respinge-proiectul.htm. Also: http://english.hotnews.ro/stiri-top_news-15550238-digging-for-gold-rosia-montana-romania-announced-closure-mining-project-corners-government-with-continuing-protests-and-threats-legal-action.htm
- 155.
- 156.
The document was submitted on the 2 November 2018, but it is not publicly available. Its contents are summarized in Procedural Order 19 of 7 December 2018 (PO 19), Paras 17–23, available at: https://www.italaw.com/sites/default/files/case-documents/italaw10152.pdf. By PO 19 only limited participation from non-disputing parties was allowed
- 157.
- 158.
The Draft Law is available online, in Romanian only at: http://www.cdep.ro/proiecte/2013/500/20/0/pl863.pdf, while the Draft New Agreement between the Government and Gabriel Resources is available online, in Romania only, at: http://media.hotnews.ro/media_server1/document-2013-09-3-15504178-0-proiect-acord-rosia-montana.pdf
- 159.
The decisional forum in this case was the Chamber of Deputies, which decided to reject the tailor-made law. The result of the voting is available online at: http://www.cdep.ro/pls/steno/eVot.Nominal?idv=11828
- 160.
See the report of the Special Commission of the Chamber of Deputies and the Senate concerning the approval of the Draft Law regarding measures related to the gold and silver exploitation in Roșia Montană and the stimulation and facilitation of development of mining activities in Romania, available in Romanian only at: http://www.cdep.ro/comisii/rosia_montana/pdf/2014/rp520_13.pdf
- 161.
For instance, Art 4, point 8 of the Draft Law, approving the definitive removal of 255 ha of forest from the national forest fond in Roșia Montană
- 162.
For instance, Art 4, point 9 of the Draft Law, establishing on the one hand that all permits needed should be issued in maximum 30 days from submission of required documents and, on the other hand, prolonging the validity of permits already issued over their due date
- 163.
Statement of Reasons, point 2: Foreseen Changes, available online, in Romanian only, at: http://www.cdep.ro/proiecte/2013/500/20/0/em863.pdf
- 164.
Art 2 of the Draft New Agreement envisioned an income of 2.3 billion USD from taxes. In addition, there were references to economic benefits estimated at 2.9 billion USD
- 165.
The economic benefits were detailed in Section 3 of the Statement of Reasons and Art 2 of the Draft New Agreement
- 166.
Idem
- 167.
Idem, point 4: Amendment of Laws. According to the Statement of Reasons, the proposed law would have modified: the Tax Code, the Mining Law, the Land Law, the Forest Code, and the Company Law. According to point 5, Other Provisions Applicable to the Mining Project (v.), by derogation from legislation governing the protection of natural areas and conservation of natural habitats, the investor was allowed to relocate a local natural monument in order to be able to conduct operations (also Art 8 of the Draft Law)
- 168.
Annex 2 to the Draft New Agreement, “Main deadlines of the authorization calendar” and “Permits and Actions Required from Authorities”
- 169.
Art 8 of the New Draft Agreement
- 170.
Art 1 of the Draft New Agreement. One of the conditions for increasing the state participation in the joint venture was the issuance of the environmental period without “significant” modifications of the initial project. Another condition was to obtain all other permits required by the exploitation phase, also without any negative substantial changes of the mining project
- 171.
On the inability of governments to act in the public interest of their populations De Schutter et al (2013) Foreign direct investment and human development: the law and economics of international investment agreements. Routledge, p. 24
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Stănescu, CG. (2020). A Study in Gold: Gabriel Resources v Romania. Qui Prodest? The Neo Liberal Rhetoric and the Multi-Facet Impact of the Investment Agreement in Roșia Montană. In: Chaisse, J., Choukroune, L., Jusoh, S. (eds) Handbook of International Investment Law and Policy. Springer, Singapore. https://doi.org/10.1007/978-981-13-5744-2_110-1
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