Gabriel Res./Cdn./Romania/ISDS/arsenic.....

Gabriel Res./Cdn./Romania/ISDS/arsenic.....

Postby Oscar » Thu Oct 06, 2016 6:24 pm

Secret Arbitration System Affecting Romanian Community

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October 06, 2016 3:27 PM · Marthe van der Wolf

BRUSSELS — Eugen David is a smallholder farmer who has been living in Rosia Montana, Romania, for the past 20 years.

He heard a mining company was coming in the early 2000's with a project that would relocate 2,000 people, demolish four mountain tops and create a waste pool of cyanide-laced water.

David did not want to be resettled and now heads a local association that opposes mining activity in the area. Protests against the mine project continued for more than 15 years and resulted in the largest demonstrations in Romania since the late 1980’s.

Romanian courts eventually said the given mining permits were obtained illegally and parliament labeled the mountainous area of Rosia Montana a historical heritage site to protect the area.

Project parent company Gabriel Resources decided to sue the Romanian state at a so-called ISDS, an investor state dispute settlement court. The first hearing took place in September.

David said he was shocked to learn about ISDS.

“We followed all the legal procedures and we showed that according to the rule of law, the Gabriel Resources’ project was illegal. Now they found a backdoor, the arbitration court; but, the Rosia Montana project should be dead and buried by now.”

Controversial procedures

ISDS is a controversial measure whereby foreign investors may sue a state at a secret arbitration for “damaging” their profits if the state has violated a trade deal or international law. Critics say ISDS is not transparent, that it gives more rights to corporations and infringes on human rights. Proponents say it protects investors.

Gabriel Resources, a Canada-based company, is suing through a bilateral trade agreement between Romania and Canada with provisions for ISDS settlements.

Alfred de Zayas investigated ISDS as an independent expert for the U.N. Human Rights Commission. He says private dispute settlements put into question democratically adopted legislation of sovereign states.

“The investor has plenty of protection. What is most normal to expect is that if you go to a country to make money, that you subject yourself to the courts of that country. They want to have their own court and that is a frontal attack on the concept of the rule of law.”

The Center for International Environmental Law in Washington is following the case to provide legal support to Rosia Montana’s local organizations by trying to have the communities' voice heard at the tribunal. So far, they have not been given access to any of the suit's documents.

The European Union, meanwhile, is negotiating two high-profile trade deals that led to mass protests in several European countries last month. The deals in question are the Transatlantic Trade and Investment Partnership or TTIP, which has been in the discussion phase since 2013, and which EU and U.S. negotiators are focused on this week in New York, and the Comprehensive Economic and Trade Agreement, or CETA.

The EU and Canada have been discussing CETA for seven years. On Thursday, the final draft of the CETA deal was leaked and a chapter covering an investment court system, or ICS, was immediately opposed by civil society organizations. The final draft of the CETA deal is expected to be signed later this month.


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Re: Gabriel Resources, ISDS & Romania's cyanide-laced water

Postby Oscar » Wed Jul 04, 2018 10:33 am

Fate of Rosia Montana valley in Romania uncertain as UNESCO and ICSID hearings appear to be on hold

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July 3, 2018 - 2:39 pm

(PHOTO: This massive march against the Rosia Montana mine took place in Bucharest, Romania in September 2013. Photo by Romania Insider. [ ... -proposal/ ] )

The Council of Canadians has opposed the construction of the controversial Rosia Montana mine in Romania since December 2013.

Whitehorse-based Gabriel Resources wants to construct a massive open-pit mine in the Carpathian mountains that would use cyanide to mine about 314 tons of ton of gold and 1,500 tons of silver. It would destroy mountainsides, displace about 2,000 villagers and create a 300-hectare toxic tailings pond.

As public opposition to the mine grew, the Romanian government of the day eventually rejected the project in 2014.

By August 2015, Gabriel Resources filed a $4.4 billion claim against Romania through the World Bank International Centre for Settlement of Investment Disputes (ICSID) using the investor-state dispute settlement provision in the Romania-United Kingdom bilateral investment treaty. The company filed the challenge through its Jersey-based 'subsidiary' that opponents believe is a shell company. Jersey is a 'British Crown Dependency' located near the coast of Normandy, France that, for historical reasons, has a jurisdictional relationship with the United Kingdom.

In one effort to protect the valley from the mine, an application was made in early 2017 by the Romanian ministry of culture to UNESCO to have Rosia Montana recognized as a world heritage site.

The application was to be heard at a meeting of the UNESCO World Heritage Committee meeting taking place between June 24-July 4 of this year.

But on June 7, Euractiv reported, "The Social Democratic (PSD) government sent [an] official withdrawal notice shortly after the International Council on Monuments and Sites (ICOMOS) recommended the inclusion of Rosia Montana on the UNESCO list of protected sites. A decision on the file - likely positive - was imminent."

The current Romanian minister of culture George Ivascu said a delay was necessary until there is a ruling by the International Centre for Settlement of Investment Disputes.

That move was denounced by former former culture minister Vlad Alexandrescu. Business Review quotes Alexandrescu commenting, "It is Romania’s most shameful moment since it entered UNESCO. All countries were going to vote for inclusion, nobody would have had any objection. Nobody, besides Romania. The interests of a corporation and a political class that sold out 20 years ago were more important than the national interest."

Furthermore, the ICSID hearing was expected to be in December 2019, but a recent Court of Justice of the European ruling seems to have thrown that into doubt.

On June 14, reported, "Gabriel Resources lawsuit against Romania suffered a setback as the country told international arbitrators they can't hear the Canadian miner’s claim. Romania’s government said a recent, ground-breaking court decision had slammed the door on certain investment arbitration cases involving European Union members, so Gabriel’s case can’t be solved that way any longer..."

Financier Worldwide explains, "This spring, the CJEU [Court of Justice of the European Union] rendered a landmark decision deeming investor-state arbitration on an intra-European level incompatible with European law. The court ruled that investor-state arbitration within the EU violates the principle of sincere cooperation of Article 344 of the TFEU [Treaty on the Functioning of the European Union]. The ruling [is not limited to the specific case heard under the Netherlands-Slovakia Bilateral Investment Treaty and] may therefore raise questions regarding the validity of the dispute settlement provisions in all of the 196 intra-EU BITs currently in force."

The fate of the valley and the investor-state challenge are unknown, but Romanian freelance reporter Claudia Ciobanu has commented, "Withdrawing the UNESCO application would certainly signal to Gabriel the Romanian government’s ‘good will’ towards brokering a settlement."

Brent Patterson's blog
Political Director of the Council of Canadians
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