On 8 March the International Centre for Settlement of Investment Disputes (ICSID) rejected the compensation claims filed by the Canadian mining company Gabriel Resources in 2015 after the government of Romania withdrew its support to build Europe’s largest gold mine in the town of Roșia Montană. Gabriel Resources was also ordered to reimburse Romania for the cost of the arbitration. Romanian organizations Alburnus Maior, Greenpeace Romania and ICDER, together with ClientEarth and ECCHR welcome this decision, as they supported the residents of Roșia Montană so that their rights were considered in the proceedings. The organizations now call on the ICSID to publish the ruling. This would ensure transparency about the proceedings and the findings. It would also deliver a sense of justice to the local residents and the citizens of Romania who fought over twenty years to stop this harmful project.
In attempting to relocate the local community using resettlement packages, the company was in breach of numerous international human rights principles. If built, the mine would have leveled four mountains and caused potentially devastating pollution by using thousands of tons of cyanide in the mining process. The planned mining also threatened one of Romania's most important archaeological sites, which in 2021 UNESCO added to its list of World Heritage Sites and Heritage Sites in Danger. In 2013, after the Romanian judiciary declared that the company’s permits were obtained illegally, thousands of Romanians took to the streets, calling on their government to stop the project. After failing to obtain the relevant permits, Gabriel Resources sued the state of Romania for US 4.4 billion, using the Investor State Dispute Settlement (ISDS) on the basis of Romania’s bilateral trade agreements (BITs) with Canada and the United Kingdom.
Despite the successful outcome, the case shows how ISDS procedures threaten national regulation carried out in the public interest and create legal uncertainty for many years. „Throughout the procedure the affected local population barely had a say in the proceedings,“ says Christian Schliemann-Radbruch, Legal Advisor at ECCHR. „They did use the only available mechanism, by submitting three amicus briefs to the Tribunal to share their perspective. However, the Tribunal was under no obligation to take their view into account.“
Amandine van den Berghe, Lawyer of ClientEarth adds: “While victims of corporate abuse often face structural legal and practical obstacles in their quest for justice, large investors can bypass domestic courts litigation in the host state and resort to private international tribunals. The ISDS system is an integral part of a structure fostering corporate impunity, shielding powerful corporations from accountability."
Cristinel Buzatu, Lawyer for Greenpeace: “This arbitration should not have taken place in the first place as the tribunal lacks jurisdiction for such cases. We strongly oppose any tribunal that can pressure countries into complying with toxic projects and that would remove questions of national importance from the jurisdiction of national courts, and consequently from the Court of Justice of the European Union, in contradiction with EU legislation and established case law."
Stephanie D. Roth, volunteer of the Save Rosia Montana campaign and founding member of ICDER: “Rosia Montana represents a rare instance where injustice is overcome using the oppressor's own tactics. Far from being discouraging, this example should serve as inspiration, demonstrating that change is possible. It offers a crucial lesson for investors: around the globe, local communities are gaining power, and the concept of a social license in the sense of free, prior, informed consent at a time when all options are still open, is evolving from mere a guideline to an established standard."
