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

At a glance

Parties

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

Case no.

ICSID Case No. ARB/15/31

Forum and rules

ICSID Convention arbitration (ICSID Arbitration Rules 2006); hearings in Washington, D.C. (December 2019) and held virtually (September–October 2020)

Treaty

Canada–Romania BIT (8 May 2009) and UK–Romania BIT

Tribunal

Prof. Pierre Tercier (President, from 5 April 2018; replaced Ms. Teresa Cheng, who resigned on 7 February 2018), Prof. Horacio A. Grigera Naón, Prof. Zachary Douglas

Sector

Gold mining (Roşia Montană Project)

Outcome

Award of 8 March 2024. The published excerpts do not reproduce the operative part. Later documents show that the Claimants seek annulment, that Romania defends the Award, and that a costs award runs against the Claimants. Horacio A. Grigera Naón dissented and would have found breaches of fair and equitable treatment under both BITs.

Amount

Claimed: US$ 3,285,656,649 plus interest compounded annually from 29 July 2011 at 12-month LIBOR + 4%. The amount of the costs award is not stated in the documents provided.

Committee

Annulment: Dr. Eduardo Zuleta Jaramillo (President), Prof. Lawrence Boo, Prof. Dr. Maxi Scherer

The dispute

Gabriel Resources Ltd., a Canadian company, and its wholly owned Jersey subsidiary Gabriel Resources (Jersey) Ltd. invested in the Roşia Montană gold mining project in Romania through the Romanian company Roşia Montană Gold Corporation S.A. (RMGC). The project was never implemented. The Claimants alleged that Romania's conduct breached the Canada–Romania and UK–Romania BITs, including by expropriation and unfair treatment. The conduct alleged includes the stalled environmental permitting process and Parliament's rejection of a draft Special Law for the project in 2013. They sought damages, not performance of the project. Romania raised jurisdictional objections, including an intra-EU objection to the UK–Romania BIT claim, a limitation objection under the Canada–Romania BIT, and the treaty's bar on interim relief, and contested liability and quantum.

Key holdings

1. The emergency request to stop Romania enforcing a VAT assessment against RMGC was denied. The heightened test of urgency was not met: there was insufficient evidence that the assessment breached Romanian law, the Claimants could post a guarantee without irreparable harm, and domestic challenges were pending. Reasoned Decision on Emergency Temporary Provisional Measures (21 October 2016), ¶¶ 36–41
2. The Tribunal has jurisdiction to protect the integrity of the arbitration, but the second request for provisional measures concerning ANAF's tax assessment and the anti-fraud investigation was dismissed. Romanian law barred passing the collected material to the defence team, and no material risk of harm was shown. Decision on Second Request for Provisional Measures (22 November 2016), ¶¶ 106–112
3. Under the Canada–Romania BIT's transparency regime (Annex C), the main pleadings and orders are published, but witness statements and expert reports are not. Requests to reclassify them as public were rejected to protect witnesses' willingness to testify and procedural economy. PO 5, ¶ 5; PO 20, ¶¶ 36–37
4. Amicus participation by Alburnus Maior, Greenpeace CEE Romania and ICDER was admitted only for factual matters within their knowledge. There is a public interest in the case, but not merely because damages would be paid from public funds. A later amicus application was rejected in 2023 because it would not assist the Tribunal. PO 19, ¶¶ 65–66, 75; PO 36, ¶ 46
5. The Claimants' hearing arguments on a 6 September 2013 valuation date were not a new claim under ICSID Rule 40 and Article 46. They are an alternative reduction of the amount claimed and are admissible, provided both sides are fully heard on that date. PO 34, ¶¶ 58–61
6. Dissent: Grigera Naón found that the rejection of the Special Law on 9 September 2013, and continuing conduct that culminated in denial of the environmental permit, breached fair and equitable treatment under both BITs. In his view, the three-year limitation in Article XIII(3)(d) of the Canada–Romania BIT did not bar claims based on conduct before 30 July 2012. He would have put arbitral fees and costs on Romania. Note of Dissent, ¶ 106
7. Annulment: the stay of enforcement continues only on security. The Committee rejected the Applicants' proposals to secure the stay with shares and real estate. It ordered an unconditional and irrevocable bank or third-party guarantee for the Cost Award plus interest within 30 days, failing which the stay lifts automatically. The European Commission's request to intervene was denied because the Tribunal's jurisdiction under the UK–Romania BIT is not challenged in the annulment. Second Decision on Stay (7 March 2025), ¶¶ 27–32; PO 2 (annulment), ¶¶ 18–19

Procedural history

1. 21 July 2015Request for Arbitration received by ICSID.
2. 21 June 2016Tribunal constituted: Teresa Cheng (President), Horacio Grigera Naón, Zachary Douglas.
3. 19 August 2016Emergency temporary provisional measures denied; reasons given on 21 October 2016.
4. 22 November 2016Second Request for Provisional Measures dismissed.
5. 7 February 2018Teresa Cheng resigns; Pierre Tercier appointed President on 5 April 2018.
6. 7 December 2018PO 19 admits part of the NGOs' amicus submission.
7. 2–13 December 2019Hearing on jurisdiction and merits in Washington, D.C.; a second, virtual hearing on technical and quantum issues follows from 28 September to 4 October 2020.
8. 30 September 2021PO 35 admits new evidence, including the July 2021 UNESCO inscription of the Roşia Montană Mining Landscape.
9. 8 March 2024Award dispatched, with Horacio A. Grigera Naón's Note of Dissent.
10. 5 July 2024The Claimants apply for annulment. The Committee continues the stay subject to security (21 January 2025) and orders a guarantee (7 March 2025). The hearing is set for 22–23 January 2026; the published documents do not show the outcome.

Tribunal, counsel and experts

Decided by

• Teresa Cheng President — appointed by the institution (resigned on 7 February 2018)
• Pierre Tercier President (replaced Teresa Cheng on 5 April 2018)
• Horacio A. Grigera Naón Co-arbitrator — appointed by the claimant (dissented)
• Zachary Douglas Co-arbitrator — appointed by the respondent
• Eduardo Zuleta Committee president
• Lawrence Boo Committee member
• Maxi Scherer Committee member

For the claimant

White & Case LLP · Ţuca Zbârcea & Asociaţii

For the respondent

LALIVE · Leaua Damcali Deaconu Paunescu - LDDP · Leaua & Asociatii

Experts

James C. Burrows (respondent) · Bernard J. Guarnera (respondent) · Mark K. Jurgensen (respondent) · Robert E. Cameron (respondent) · Dacian Cosmin Dragoş (respondent) · Ian Thomson (respondent) · Larraine Wilde (respondent) · Compass Lexecon (claimant) · SRK Consulting (claimant)

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Keywords

• Roşia Montană
• gold mining
• Canada–Romania BIT
• UK–Romania BIT
• fair and equitable treatment
• expropriation
• Special Law
• environmental permit
• UNESCO World Heritage
• social license
• intra-EU objection
• Achmea
• limitation period
• valuation date
• amicus curiae
• transparency
• provisional measures
• annulment

Summary generated with AI from the published documents — refer to the award for the authoritative text.