Gabriel Resources Ltd. and Gabriel Resources (Jersey) v. Romania

Case summary

At a glance

Parties: Gabriel Resources Ltd. (Canada) and Gabriel Resources (Jersey) Ltd. v. Romania
Case no.: ICSID Case No. ARB/15/31
Forum and rules: ICSID Convention arbitration; ICSID Arbitration Rules in force as of 10 April 2006
Treaty: Canada–Romania BIT of 8 May 2009; UK–Romania BIT of 13 July 1995 (extended to Jersey)
Tribunal: Prof. Pierre Tercier (President, from 5 April 2018, replacing Ms. Teresa Cheng, who resigned on 7 February 2018), Prof. Horacio A. Grigera Naón, Prof. Zachary Douglas
Sector: Gold mining (Roşia Montană Project)
Outcome: The texts provided are procedural orders only. An Award dated 8 March 2024 and an annulment proceeding are listed, but their texts are not included, so the outcome is not shown here.
Amount: Claimed: US$ 3,285,656,649 plus interest compounded annually from 29 July 2011 at 12-month LIBOR + 4% (as recorded in Procedural Order No. 34).

The dispute

Gabriel Resources Ltd. and Gabriel Resources (Jersey) Ltd. invested in the Roşia Montană gold mining project in Romania through their Romanian subsidiary, Rosia Montana Gold Corporation S.A. (RMGC). The project was never implemented. The claimants alleged expropriation and other breaches of the Canada–Romania and UK–Romania BITs. Among other things, they alleged that the Government unlawfully blocked the project's permitting in order to force a renegotiation of its economic terms in 2011–2012. They sought a declaration of breach and compensation, not performance of the project. Romania contested the claims and raised a new jurisdictional objection about consent to arbitration under the UK–Romania BIT; the European Commission also filed a submission on that issue.

Key holdings

The amicus petition of Alburnus Maior, Greenpeace CEE Romania and ICDER was granted only in part. The Tribunal admitted factual matters within the applicants' own knowledge and excluded legal argument and reliance on testimonies. It found a public interest in the case but doubted that the applicants had a significant interest in it. The amici could watch the hearing but not take part. PO 19, ¶¶ 60–75
Romania's request to reclassify the claimants' witness statements and expert reports as non-confidential was rejected, first for the Memorial round and then for the Reply. The Tribunal weighed the protection of the proceedings and the witnesses, procedural economy and transparency. It held that publishing the main submissions, orders and decisions sufficiently preserves transparency. PO 11, ¶ 107; PO 20, ¶¶ 36–45
A tribunal may admit supplemental document requests after the scheduled document production phase where there is good reason. Romania was ordered to produce, or to confirm it did not hold, documents on the 2011–2012 Negotiation Commission. The claimants had learned of the Commission only from Government memoranda that Romania produced. PO 17, ¶¶ 25–40
Romania had filed new witness and expert evidence with its Rejoinder, so the claimants were allowed a limited, focused rebuttal and Romania a sur-rebuttal. Mr. Ponta's "declaration" and two official letters (CMA-122 and CMA-123) would be struck from the record unless Romania resubmitted them as witness statements or expert reports. PO 23, ¶¶ 93–95 and Order
Arguments the claimants raised at the September 2020 hearing on a valuation date of 6 September 2013 were not a new ancillary claim under ICSID Arbitration Rule 40 or Article 46 of the Convention, and they were admissible. The Tribunal added that it could not adopt a different valuation date without first giving both parties a full opportunity to address it. PO 34, ¶¶ 58–61
For the second hearing, planned for Paris, the Tribunal ordered a closed-circuit broadcast with a 2–3 day delay in an overflow room in Washington, D.C. It rejected streaming on the ICSID website because that conflicted with the agreed closed-circuit broadcast. That hearing later took place by video. PO 29, ¶¶ 15–17

Procedural history

21 July 2015ICSID received the Request for Arbitration.
21 June 2016Tribunal constituted.
26 August 2016Procedural Order No. 1 issued; it provides for public hearings under Annex C of the Canada–Romania BIT.
14 November 2016Procedural Order No. 3 (confidentiality order) issued.
7 February 2018President Teresa Cheng resigned. Prof. Pierre Tercier was appointed on 5 April 2018.
7 December 2018Procedural Order No. 19: amicus petition partly granted.
2–13 December 2019First hearing held at ICSID in Washington, D.C. The European Commission's application to intervene was granted on 7 December 2019.
28 September – 4 October 2020Second hearing, on technical and quantum issues, held by video.
22 October 2020Procedural Order No. 34: the arguments on a 6 September 2013 valuation date are admissible.
8 March 2024Award of the Tribunal (listed; text not included). An Application for Annulment dated 5 July 2024 is also listed.

Tribunal, counsel and experts

Decided by: Teresa Cheng President — appointed by the institution (appointed by the Secretary-General pursuant to the parties' agreement; resigned 7 February 2018)
Pierre Tercier President (appointed 5 April 2018, replacing Ms. Cheng)
Horacio A. Grigera Naón Co-arbitrator — appointed by the claimant
Zachary Douglas Co-arbitrator — appointed by the respondent
For the claimant: White & Case LLP · Ţuca Zbârcea & Asociaţii
For the respondent: LALIVE · Leaua & Asociatii
Experts: James C. Burrows (respondent) · Bernard J. Guarnera (respondent) · Mark K. Jurgensen (respondent) · Robert E. Cameron (respondent) · Michael McLoughlin (respondent) · Dacian Cosmin Dragoş (respondent) · Ian Thomson (respondent) · Larraine Wilde (respondent) · Cathy Reichardt (respondent) · Karr McCurdy (respondent) · Thomas Brady (respondent) · Pablo T. Spiller (claimant) · Santiago Dellepiane (claimant) · Mike Armitage (claimant) · Nick Fox (claimant) · Lucian Mihai (claimant) · Corneliu Bîrsan (claimant) · Ovidiu Podaru (claimant) · Robert Boutilier (claimant) · Patrick G. Corser (claimant) · Christian Kunze (claimant)